Governor Ducey Signs HB 2268, Changing mailing Requirement for AZ Little Miller Act Claims.
In May of 2015, the Court of Appeals decision in Cemex Construction Materials South, LLC v. Falcone Bros. & Assoc. Inc., the Court held that the 20-day preliminary notice required under Arizona’s Little Miller Act could not be served via first class mail with a certificate of mailing. Instead, the Court held preliminary notice under a payment bond had to be sent by registered or certified mail.
The Cemex court explained that the mailing requirement that allowed 20-day notices to be sent by “first class mail sent with a certificate of mailing, registered or certified mail, postage prepaid”; for mechanics’ liens was not expressly included in the subsections and paragraphs the Legislature incorporated by reference in the payment bond statute.
HB 2268 fixed this issue. The statute now provides that the claimant must give a 20-day notice “as provided for in section 33-992.01, subsection C, paragraphs 1, 2, 3 and 4 and subsections E, F and H.” By adding that one letter (“F”), preliminary notice service requirements for payment bond claims will be identical to how notices are served for mechanics’ lien. Preliminary notices for payment bond claims can be served by US mail with a certificate of mailing or by certified or registered mail. Either is valid service.
This new law becomes effective on August 6, 2016. It is not expressly retroactive. This means claimants who used first class mail and a certificate of mailing to support their Little Miller Act payment bond claim might still be in trouble.
-Per Jim Csontos, Jennings, Haug, & Cunningham LLP
JLC@jhc-law.com 602-234- 7800
• On public works projects, use certified or registered mail to serve preliminary notices until August 6, 2016
• After August 6, 2016, you may also serve such preliminary notices by first class mail with a certificate of mailing