Contractor & Sub Both Agreed Work Was Beyond Scope, Surety Will Pay

Tuesday, February 05, 2019 8:51 am
February 2019 - Volume 41 Number 2

Payment Bond --- Scope of Work

Westchester Fire Ins. Co., LLC v. Kesoki Painting LLC, 2018 Fla. App. Lexis 18272 (December 19, 2018) A surety is on the hook for “extra work” payment to a subcontractor because, while the project architect deemed the work within the subcontract’s scope, both the contractor and the sub agreed it was not.

In March 2014, contractor Lee Construction Group, Inc. (Lee) entered into a subcontract with Kesoki Painting, LLC (Kesoki) to perform painting and waterproofing work for the Miami-Dade County Overtown Transit Village. During the course of work, a dispute arose regarding the required waterproof work to the windows. 

Kesoki submitted a $100,000 change order to Lee for extra work associated with cutting window gaskets and applying a sealant to prevent leaks. Lee approved the change order and submitted it to the county. But the county rejected the change order because, it contended, the work was within the subcontract scope. 

Seeking recovery, Kesoki sued Lee’s payment bond surety, Westchester Fire Insurance Company, LLC. The original jury trial awarded Kesoki $91,904, but Westchester appealed, arguing that the project architect had the final say as to the project’s scope of work. The appellate court denied Westchester appeal and affirmed the trial court’s decision.