Sec. 49-42. Enforcement of right to payment on bond. Suit on bond, procedure and judgment.
Sec. 49-42. Enforcement of right to payment on bond. Suit on bond, procedure
and judgment. (a) Any person who performed work or supplied materials for which a
requisition was submitted to, or for which an estimate was prepared by, the awarding
authority and who does not receive full payment for such work or materials within sixty
days of the applicable payment date provided for in subsection (a) of section 49-41a,
or any person who supplied materials or performed subcontracting work not included
on a requisition or estimate who has not received full payment for such materials or
work within sixty days after the date such materials were supplied or such work was
performed, may enforce such person's right to payment under the bond by serving a
notice of claim on the surety that issued the bond and a copy of such notice to the
contractor named as principal in the bond not later than one hundred eighty days after
the last date any such materials were supplied or any such work was performed by the
claimant. For the payment of retainage, as defined in section 42-158i, such notice shall
be served not later than one hundred eighty days after the applicable payment date
provided for in subsection (a) of section 49-41a. The notice of claim shall state with
substantial accuracy the amount claimed and the name of the party for whom the work
was performed or to whom the materials were supplied, and shall provide a detailed
description of the bonded project for which the work or materials were provided. If the
content of a notice prepared in accordance with subsection (b) of section 49-41a complies
with the requirements of this section, a copy of such notice, served not later than one
hundred eighty days after the date provided for in this section upon the surety that issued
the bond and upon the contractor named as principal in the bond, shall satisfy the notice
requirements of this section. Not later than ninety days after service of the notice of
claim, the surety shall make payment under the bond and satisfy the claim, or any portion
of the claim which is not subject to a good faith dispute, and shall serve a notice on the
claimant denying liability for any unpaid portion of the claim. The notices required
under this section shall be served by registered or certified mail, postage prepaid in
envelopes addressed to any office at which the surety, principal or claimant conducts
business, or in any manner in which civil process may be served. If the surety denies
liability on the claim, or any portion thereof, the claimant may bring action upon the
payment bond in the Superior Court for such sums and prosecute the action to final
execution and judgment. An action to recover on a payment bond under this section
shall be privileged with respect to assignment for trial. The court shall not consolidate
for trial any action brought under this section with any other action brought on the same
bond unless the court finds that a substantial portion of the evidence to be adduced,
other than the fact that the claims sought to be consolidated arise under the same general
contract, is common to such actions and that consolidation will not result in excessive
delays to any claimant whose action was instituted at a time significantly prior to the
motion to consolidate. In any such proceeding, the court judgment shall award the prevailing party the costs for bringing such proceeding and allow interest at the rate of
interest specified in the labor or materials contract under which the claim arises or, if
no such interest rate is specified, at the rate of interest as provided in section 37-3a upon
the amount recovered, computed from the date of service of the notice of claim, provided,
for any portion of the claim which the court finds was due and payable after the date of
service of the notice of claim, such interest shall be computed from the date such portion
became due and payable. The court judgment may award reasonable attorneys fees to
either party if upon reviewing the entire record, it appears that either the original claim,
the surety's denial of liability, or the defense interposed to the claim is without substantial
basis in fact or law. Any person having direct contractual relationship with a subcontractor but no contractual relationship express or implied with the contractor furnishing the
payment bond shall have a right of action upon the payment bond upon giving written
notice of claim as provided in this section.
(b) Every suit instituted under this section shall be brought in the name of the person
suing, in the superior court for the judicial district where the contract was to be performed, irrespective of the amount in controversy in the suit, but no such 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, except that any such suit solely seeking
payment for retainage, as defined in section 42-158i, shall be commenced not later than
one year after the date payment of such retainage was due, pursuant to the provisions
of subsection (a) of section 49-41a.
(c) The word "material" as used in sections 49-33 to 49-43, inclusive, shall include
construction equipment and machinery that is rented or leased for use (1) in the prosecution of work provided for in the contract within the meaning of sections 49-33 to 49-43,
inclusive, or (2) in the construction, raising or removal of any building or improvement of
any lot or in the site development or subdivision of any plot of land within the meaning
of sections 49-33 to 49-39, inclusive.
(1949 Rev., S. 7215; 1961, P.A. 228; 1969, P.A. 192, S. 1; P.A. 78-280, S. 2, 127; P.A. 79-602, S. 100; P.A. 87-345,
S. 2; P.A. 94-188, S. 16; P.A. 00-36; P.A. 01-195, S. 48, 181; P.A. 06-78, S. 1.)
History: 1961 act required that payment be made within 90 days rather than 60 days in Subsec. (a); 1969 act required
that suit commence within one year after date on which last of the labor was performed or material was supplied rather
than within one year "after the date of final settlement of such contract" in Subsec. (b); P.A. 78-280 substituted "judicial
district" for "county" in Subsec. (b); P.A. 79-602 made minor changes in wording but made no substantive changes; P.A.
87-345 substantially amended procedure set forth in Subsec. (a) for enforcement of right to payment under bond; P.A. 94-188 amended procedure set forth in Subsec. (a) for enforcement of right to payment under bond and amended Subsec. (b)
by adding language concerning the applicable payment date provided for in Sec. 49-41a and the time within which to
commence suit for materials or work not included on a requisition or estimate; P.A. 00-36 redefined "material" in Subsec.
(c) to include construction equipment that is rented or leased for use in prosecution of work or in construction, raising,
removal of any building or improvement of lot or in site development or subdivision and to apply term to Secs. 49-33 to
49-43, inclusive; P.A. 01-195 made technical changes in Subsecs. (a) and (c), effective July 11, 2001; P.A. 06-78 added
provision in Subsec. (a) re notice for payment of retainage, added provisions in Subsec. (b) re commencement of suit within
one year of last date materials were supplied or work was performed by claimant and requiring suit seeking payment solely
for retainage to be commenced within one year after retainage payment was due, pursuant to Sec. 49-41a(a) and made
conforming and technical changes in Subsecs. (a) and (b), effective May 30, 2006.
Cited. 143 C. 85. History discussed. 151 C. 332. Material actually forming part of work provided for in public works
contract, as well as labor performed at the site, is clearly within contemplated coverage of payment bond required for
protection of persons who have furnished "labor or material in the prosecution of the work". Id., 334. Test as to whether
labor and materials used in making repairs which are major items are covered by payment bond is whether item was
necessitated by rigors of job rather than prior condition of equipment and whether supplier and purchasing contractor
reasonably expected that item would be substantially consumed on the job. Id., 335, 336. Having found that no administrative
determination by public works commissioner of final settlement date had been made under section 49-43, court was justified
in concluding that no final settlement within meaning of this section could be said to have preceded actual payment and
exchange of releases, and that subject action commenced within three months of that date had been timely brought. 159
C. 563. Cited. 174 C. 219. Remedies afforded by this section and Sec. 49-41a(b) are independent and notice requirements
of later are not prerequisite to suit initiated under this section. 207 C. 468. Cited. 225 C. 367. Cited. 229 C. 303. Cited.
238 C. 293. Sec. 49-41 et seq. cited. 239 C. 708. Cited. 240 C. 10.
Cited. 25 CA 751. Cited. 29 CA 783. Cited. 32 CA 118; Id., 133. Claims under this section are not preempted by ERISA.
40 CA 777.
Cited. 17 CS 297. Fact that written notice was given to the contractor in an action on bond must be recited in the
complaint or a copy annexed thereto. Failure to comply with this rule left the complaint deficient. 18 CS 43. Until the
subcontractor exercises his right of action granted by this section, there is no debt due from the contractor to the subcontractor
which can be garnished. 21 CS 16. Cited. 32 CS 168.
Cited. 6 Conn. Cir. Ct. 204, 205.
Subsec. (a):
Decision permits subcontractor to sue on surety bond despite failure to comply precisely with notice requirements of
section. 225 C. 367. "Payment bond claim act" cited. 238 C. 293.
Because section requires only "substantial accuracy" re complaint, plaintiff was not obligated to prove that company
X was now known as company Y. 49 CA 522. Trial court erred in refusing to admit evidence of notice of claim on the
surety. Id.
Cited. 6 Conn. Cir. Ct. 204, 206, 207.
Subsec. (b):
Cited. 236 C. 750.
1969 amendment is not applicable to contract made prior to its passage as it would materially affect contract. 6 Conn.
Cir. Ct. 205, 206, 208, 209.