In Massachusetts, like almost every state, a bond claimant on a public works project must notify a general contractor by certified mail of the bond claim. This notice is mandated by the Massachusetts Little Miller Act. The statutory provision requires the notice be delivered by “mailing the same by registered or certified mail,” but like in many other states, courts have begun to recognize other forms of mailing as efficient. Although a Massachusetts court has not yet declared an email notice sufficient to validate a bond claim, the decision to allow email notices seems imminent.
The Progression Towards Email Notice
The change away from certified mail began more than 20 years ago. A Massachusetts appellate court held that failure to give by certified mail was not fatal as long as actual notice could be proven by the claimant. In Bastianelli v. National Union Fire Ins., 36 Mass. App. Ct. 367 (1994), the appellate court found that actual notice was served to the general contractor by way of the invoices sent by the claimant directly to the general contractor. These invoices provided actual notice or actual knowledge on the part of the general contractor in a timely manner. This decision was the first in Massachusetts to open the door for notices that were not exactly traditional.
The shift away from the “certified mail” requirement has continued to progress over the past 20 years coming to a head currently in another appellate case. Recently in N-Tek Construction Services, Inc. v. Hartford Fire Ins. Co., (Mar. 14, 2016), a Massachusetts appellate court held an email insufficient notice for a bond claim. However, the court did leave open the door for more detailed emails to satisfy the notice requirement. The email question read as follows
Hello Bob. Enclosed is the January 15, 2010 Statement to Seaway Coatings, Inc./Mr. Athanasios Koussouris for services through that date by N-Tek Construction Services, Inc. for the [project] that are still unpaid.
Please give me a call at [telephone number] when you have a chance. Thanks. Joe[.]
The general contractor receiving this email was not fully aware of the relationship between the parties and did not understand the email to be making any sort of claim against it or the surety. The court ruled the email insufficient, but not all emails insufficient. The court pointed to previous case law stating that “notice requirement can be satisfied by a brief letter” from the supplier or laborer to the general contractor, it is essential nonetheless that the notice “make unambiguous the claimed rights of all.” Barboza v. Aetna Cas. & Sur. Co., 18 Mass. App. Ct. 323, 328 (1984). Then, the court made a point of including this footnote
The judge ruled that N-Tek’s March 16 e-mail was “in writing” and “notice of something, but it was not timely notice of a claim against SPS and its surety bond.” The judge assumed (and Hartford does not dispute) that a sufficiently detailed email would satisfy § 29’s requirement that the notice must “be served by mailing the same by registered or certified mail postage prepaid in an envelope addressed to the contractor principal” at its place of business. In view of the result we reach, we are not required to resolve this issue.
This particular email was deemed insufficient, but the door was left wide open for a future ruling that could find an email sufficient as a notice.
The Future is Now
The trend in Massachusetts towards email notices is a common one throughout the country. As forms of communication progress in everyday business, so does the law and legal requirements with it. The decision may be this year or in five years, but a decision is coming that will rule an email as sufficiently fulfilling the notice requirement. Some states may already have such decisions. Courts have become much more focused on the language of the notice rather than the medium. This development will help save claimants in postage, but more importantly, it will make it easier for claimants to exercise bond and lien rights. To be sure that you are sending notices correctly with language sufficient to fulfill statutory requirements, check you state’s requirements here.
