Earlier this year, a Florida appellate court overruled a decision denying a claim for attorneys’ fees by a prime contractor and its surety after prevailing in its defense of a Miller Act claim. In U.S.A. f/u/b/o RMP Capital Corp. v. Turner Construction Co., 2017 WL 244066 (11th Cir. 2017), a subcontractor and sub-subcontractor on a federal government project filed suit against the prime contractor and its sureties to collect against the payment bond. On the first day of trial, the Miller Act claims were voluntarily dismissed. The prime contractor and sureties then requested their attorneys’ fees and costs related to those claims. The district court awarded some costs but denied the request for attorneys’ fees.
The Miller Act does not explicitly mention entitlement to attorneys’ fees, even to a prevailing plaintiff. Nonetheless, the appellate court overruled the district court decision by holding that a prime contractor and its sureties can be entitled to attorneys’ fees when prevailing in a Miller Act bond claim. These instances are limited to when there is an enforceable contract allocating attorneys’ fees. Based on this decision, if a subcontract includes a prevailing party provision, the subcontractor could be responsible for the attorneys’ fees of the prime contractor and sureties in an unsuccessful Miller Act bond claim.