A. Every claimant who has furnished labor or material in the prosecution of the work provided for in a contract for which a payment bond is furnished under section 34-222, and who has not been paid in full for the labor or material for the work before the expiration of a period of ninety days after the day on which the last of the labor was done or performed by the claimant or material was furnished or supplied by the claimant for which the claim is made, shall have the right to sue on the payment bond for the amount, or the balance of the amount, unpaid at the time of institution of the suit and to prosecute the action to final judgment for the sum or sums justly due the claimant, and have execution thereon, provided however that any claimant who has a direct contractual relationship with a subcontractor of the contractor furnishing the payment bond but not a contractual relationship express or implied with the contractor has a right of action on the payment bond on giving the contractor the following notices:
1. A written preliminary twenty-day notice, as provided for in section 33-992.01, subsection C, paragraphs 1, 2, 3 and 4 and subsections E, F and H.
2. A written ninety-day notice given within ninety days after the date on which the claimant performed the last of the labor or furnished or supplied the last of the material for which the claim is made, stating with substantial accuracy the amount claimed and the name of the party to whom the material was furnished or supplied or for whom the labor was done or performed. The ninety-day notice shall be given by any means that provides written, third-party verification of delivery to the contractor at any place the contractor maintains an office or conducts business, or at the contractor's residence.
B. Every suit instituted under this section shall be brought in the name of the claimant but no such suit shall be commenced after the expiration of one year after the date on which the last of the labor was performed or materials were supplied by the person bringing this suit.
C. On written application, the contracting body and the agent in charge of its office shall furnish to any person that states the person has supplied labor or materials for the work, and payment for the labor or materials for the work has not been made, or is being sued on the bond, or is the surety on the bond, a certified copy of the bond and the contract for which the bond was given. The copy is prima facie evidence of the contents, execution and delivery of the original. Applicants shall pay for the certified copies and the reasonable fees that the contracting body or the agent in charge of its office fixes to cover the actual cost of preparation of the certified copies.
Notes of Decisions
Cemex Constr. Materials South, LLC v. Falcone Bros. & Assocs., Inc., 349 P.3d 210 (Ariz. Ct. App. 2015).
· cites it 45× “To maintain an action on the bond, a claimant must comply with the notice requirements of § 34-223(A), which provides in pertinent part: [A]ny such claimant having a direct contractual relationship with a subcontractor of the contractor furnishing such payment bond but no…”
Hartford Accident & Indem. Co. v. Fed. Ins., 834 P.2d 827 (Ariz. Ct. App. 1992).
· cites it 17× “The bond shall be conditioned in accordance with the provisions of § 34-223, subsections A and B. The contract recorded with the bond shall contain a legal description of the land on which the work is being or is to be performed.”
Westburne Supply, Inc. v. Diversified Design & Constr., Inc., 826 P.2d 1224 (Ariz. Ct. App. 1992).
· cites it 27× “Westburne properly served a preliminary twenty day notice to Diversified as required by A.R.S. § 34-223(A). The notice estimated that the cost of the materials supplied would be $1,500.”
S & S Paving & Constr., Inc. v. Berkley Reg'l Ins., 372 P.3d 1036 (Ariz. Ct. App. 2016).
· cites it 8× “” A.R.S. § 34-223(A). “The purpose behind both of the Miller Acts is to provide security for those who supply materials or labor in the construction of public projects.”
W. Asbestos Co. v. TGK Const. Co., Inc., 590 P.2d 927 (Ariz. 1979).
· cites it 10× “Construction, and the invoices thereto attached * * * do not constitute notice as required by A.R.S. § 34-223; and “2. That there was not, and is not, any contractual relationship existing between the Plaintiff [Western Asbestos Co.”
Greaig v. Park West Constr. Co., 637 P.2d 1079 (Ariz. Ct. App. 1981).
· cites it 19× “A.R.S. § 34-223 in pertinent part provides that: [A]ny such claimant having a direct contractual relationship with a subcontractor of the contractor furnishing such payment bond but no contractual relationship express or implied with such contractor shall have a right of action…”
Coast to Coast Mfg. v. Carnes Constr., Inc., 700 P.2d 499 (Ariz. Ct. App. 1985).
· cites it 7× “The statute states: “Every claimant who has furnished labor or material in the prosecution of the work provided for in such contract in respect of which a payment bond is furnished under the provisions of § 34-222, and who has not been paid in full therefor before the expiration…”
Brown Wholesale Elec. Co. v. Safeco Ins. Co. of Am., 659 P.2d 1299 (Ariz. Ct. App. 1982).
· cites it 2× “See A.R.S. § 34-223. If these three statutes are to be read together, as appellant claims, a claimant would be faced with two differing notice provisions.”
Gen. Acrylics v. United States Fid. & Guar. Co., 623 P.2d 839 (Ariz. Ct. App. 1980).
· cites it 4× “See A.R.S. § 34-223(C). In the interpleader action, USF&G, as the assignee and subrogee of All American, moved for summary judgment, claiming it was entitled to all the sums interpleaded by Tuba City.”
R.E. Monks Constr. Co. v. Aetna Cas. & Sur. Co., 944 P.2d 517 (Ariz. Ct. App. 1997).
· cites it 12× “This court has previously held that the limitations period under A.R.S. § 34-223 does not begin to run until completion of all work performed in direct furtherance of the construction contract.”
— Ariz. Rev. Stat. § 34-223(0) — 1 case
— Ariz. Rev. Stat. § 34-223(A) — 15 cases
Cemex Constr. Materials South, LLC v. Falcone Bros. & Assocs., Inc., 349 P.3d 210 (Ariz. Ct. App. 2015).
“To maintain an action on the bond, a claimant must comply with the notice requirements of § 34-223(A), which provides in pertinent part: [A]ny such claimant having a direct contractual relationship with a subcontractor of the contractor furnishing such payment bond but no…”
W. Asbestos Co. v. TGK Const. Co., Inc., 590 P.2d 927 (Ariz. 1979).
“Construction, and the invoices thereto attached * * * do not constitute notice as required by A.R.S. § 34-223; and “2. That there was not, and is not, any contractual relationship existing between the Plaintiff [Western Asbestos Co.”
S & S Paving & Constr., Inc. v. Berkley Reg'l Ins., 372 P.3d 1036 (Ariz. Ct. App. 2016).
“” A.R.S. § 34-223(A). “The purpose behind both of the Miller Acts is to provide security for those who supply materials or labor in the construction of public projects.”
Coast to Coast Mfg. v. Carnes Constr., Inc., 700 P.2d 499 (Ariz. Ct. App. 1985).
“The statute states: “Every claimant who has furnished labor or material in the prosecution of the work provided for in such contract in respect of which a payment bond is furnished under the provisions of § 34-222, and who has not been paid in full therefor before the expiration…”
— Ariz. Rev. Stat. § 34-223(B) — 7 cases
Hartford Accident & Indem. Co. v. Fed. Ins., 834 P.2d 827 (Ariz. Ct. App. 1992).
“The bond shall be conditioned in accordance with the provisions of § 34-223, subsections A and B. The contract recorded with the bond shall contain a legal description of the land on which the work is being or is to be performed.”
S & S Paving & Constr., Inc. v. Berkley Reg'l Ins., 372 P.3d 1036 (Ariz. Ct. App. 2016).
“” A.R.S. § 34-223(A). “The purpose behind both of the Miller Acts is to provide security for those who supply materials or labor in the construction of public projects.”
R.E. Monks Constr. Co. v. Aetna Cas. & Sur. Co., 944 P.2d 517 (Ariz. Ct. App. 1997).
“This court has previously held that the limitations period under A.R.S. § 34-223 does not begin to run until completion of all work performed in direct furtherance of the construction contract.”
Cemex Constr. Materials South, LLC v. Falcone Bros. & Assocs., Inc., 349 P.3d 210 (Ariz. Ct. App. 2015).
“To maintain an action on the bond, a claimant must comply with the notice requirements of § 34-223(A), which provides in pertinent part: [A]ny such claimant having a direct contractual relationship with a subcontractor of the contractor furnishing such payment bond but no…”
— Ariz. Rev. Stat. § 34-223(C) — 3 cases
Gen. Acrylics v. United States Fid. & Guar. Co., 623 P.2d 839 (Ariz. Ct. App. 1980).
“See A.R.S. § 34-223(C). In the interpleader action, USF&G, as the assignee and subrogee of All American, moved for summary judgment, claiming it was entitled to all the sums interpleaded by Tuba City.”
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