Virginia Little Miller Act Payment Bond Claim Notice Reduced to 90 days

11/08/2011

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Effective July 1, 2011, the time for a lower tier payment bond claimant to provide claim notice under Virginia’s Little Miller Act, Virginia Code Section 2.2-4341, was reduced from 180 days to 90 days. This clearly applies to bonds written after July 1, 2011, but leaves the question of application to bonds written prior to July 1, 2011. Left unanswered in the statute is whether the 90 day rule will be applied to pre-July 1, 2011 bonds but for which the 90 days has not yet expired. It seems unlikely the courts will apply the statute so as to de-vest a claimant who was within the 90 to 180 day period as of July 1, 2011 since the general rule in Virginia is to not construe statutes so as to alter vested rights. The question is harder for claimants who knew (or are presumed to know) of the statutory reduction before their rights expired, and how the courts will treat them, so expect to see ongoing litigation, and likely differing circuit court decisions, on this until either the Supreme Court decides the question, or the code is further amended.

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