Andersen Service Corp. d/b/a Plumbing Inc. v. Old Republic Surety Company

D ISTRICT C OURT OF A PPEAL O F T HE STATE OF F LORIDA
FOURTH DISTRICT
ANDERSEN SERVICE CORPORATION d/b/a PLUMBING INC.,
Appellant,
v.
OLD REPUBLIC SURETY COMPANY,
Appellee.
No. 4D2025-2411
[January 7, 2026]
Appeal of a nonfinal order from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; John B. Bowman, Judge; L.T. Case No.
CACE-25-005903.
Michael J. Friedman and Nicole D. Moss of Friedman Legal, Boca
Raton, for appellant.
Michael R. Holt of Rumberger, Kirk & Caldwell, P.A., Miami, and
Christopher 	A. 	Cafardi 	of 	Cafardi 	Ferguson 	+ 	Wyrick, 	Sewickley,
Pennsylvania, for appellee.
C ONNER , J.
The plaintiff, Andersen Service Corporation, appeals a nonfinal order
granting defendant Old Republic Surety Company’s motion to compel
arbitration. 	The plaintiff seeks reversal because the order compels the
parties—a subcontractor and a surety—to arbitrate, in Pennsylvania, a
lien transfer bond dispute that is the subject of the suit below. 	We agree
the 	entry 	of 	the 	order 	on 	appeal 	was 	error 	because 	no 	arbitration
agreement exists between the parties.
Background
The plaintiff entered a subcontract with nonparty Marco Contractors,
Inc. 	The subcontract contained a dispute resolution clause allowing
Marco, and only Marco, to elect arbitration or litigation. 	The subcontract
mandates that arbitration, if elected, will take place in Allegheny County,
Pennsylvania. 	The defendant was not a party to the subcontract.

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Thereafter, the plaintiff recorded a construction lien for unpaid work.
The construction lien was transferred to a lien transfer bond pursuant to
section 713.24, Florida Statutes (2024).
The 	lien 	transfer 	bond 	was 	posted 	by 	Marco, 	but 	issued 	by 	the
defendant as the surety. 	The lien transfer bond did not incorporate or
reference the subcontract. Rather, the bond stated it was issued pursuant
to section 713.24. 	The transfer bond was recorded in Broward County.
The 	plaintiff 	filed 	a 	single-count 	statutory 	claim 	against 	the 	lien
transfer bond in Broward County. 	The suit was brought against the
defendant, but not Marco.
The defendant moved to compel arbitration. 	The plaintiff opposed the
motion. After a hearing, the trial court granted the arbitration motion and
stayed the proceedings.
This appeal followed.
Appellate Analysis
The plaintiff argues that the defendant, a surety, was not a party to the
subcontract and neither the subcontract nor the subcontract’s arbitration
provision were incorporated into the lien transfer bond. Thus, the plaintiff
contends the right to arbitrate was never triggered by a party designated
under the subcontract as entitled to invoke arbitration.
“An 	order 	granting 	or 	denying 	a 	motion 	to 	compel 	arbitration 	is
reviewed de novo.” 	DFC Homes of Fla. v. Lawrence, 8 So. 3d 1281, 1282
(Fla. 4th DCA 2009) (citation omitted).
“A court reviewing a motion to compel arbitration must consider three
elements: (1) whether a valid written agreement to arbitrate exists; (2)
whether an arbitrable issue exists; and (3) whether the right to compel
arbitration has been waived.” 	U.S. Fire Ins. Co. v. Am. Walks at Port St.
Lucie, LLC, 386 So. 3d 575, 580 (Fla. 4th DCA 2024) (citing Seifert v. U.S.
Home Corp., 750 So. 2d 633, 636 (Fla. 1999)). In other words, to properly
order the parties to arbitration, a trial court must determine a valid written
agreement to arbitrate exists, an arbitrable issue exists, and the right to
compel arbitration has not been waived. 	Id. (citing Seifert, 750 So. 2d at
636).
Here, the first element was not met. 	The subcontract binds only the
plaintiff and Marco. The defendant is a non-signatory to the subcontract,

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and the bond contains no arbitration language, nor does it incorporate the
subcontract. 	The plaintiff is correct that no arbitration agreement exists
between the plaintiff and the defendant.
In this case, the transfer lien bond is the subject of the litigation. 	The
defendant is the surety to the transfer lien bond. Sureties cannot exercise
unilateral 	election 	rights 	that 	are 	reserved 	for 	the 	principal 	of 	the
underlying contract. 	See Aetna Cas. & Sur. Co. v. Jelac Corp., 505 So. 2d
37, 38 (Fla. 4th DCA 1987) (“Aetna is at most an incidental beneficiary to
the contract and thus has no right to enforce the contract’s arbitration
provision.”). Further, Marco is a nonparty which never elected to exercise
or waive its right to arbitration under the subcontract. 	Thus, the second
and third elements to compel arbitration were also not met.
The defendant contends that Florida law recognizes equitable estoppel
as 	an 	exception 	permitting 	non-signatories 	to 	a 	contract 	to 	compel
arbitration. 	In support, the defendant relies on Henderson Investment
Corp. v. International Fidelity Insurance Co., 575 So. 2d 770 (Fla. 5th DCA
1991), for the proposition that the obligations of a surety under a bond
agreement are coextensive with those of the principal.
Henderson is distinguishable. 	In Henderson, the performance bond
expressly referenced the construction contract making the construction
contract “part” of the performance bond agreement. 	Id. at 771. 	The
Henderson court relied on our decision in St. Paul Fire & Marine Insurance
Co. v. Woolley/Sweeney Hotel No. 5, 545 So. 2d 958, 958 (Fla. 4th DCA
1989), 	which 	opined 	that 	arbitration 	could 	be 	compelled 	when 	the
construction 	contract 	contained 	an 	arbitration 	provision, 	and 	the
performance bond incorporated the construction contract by reference. In
Woolley/Sweeney Hotel, we reasoned that the surety’s incorporation of the
construction contract into the performance bond “bound [the surety] to
participate and be bound by the arbitration of any disputes under the
construction contract.” 	Id. at 959 (citation omitted). 	Here, as discussed
above, the surety bond did not contain an arbitration agreement and did
not incorporate the subcontract or the subcontract’s arbitration provision.
Thus, 	Henderson 	and 	Woolley/Sweeney 	Hotel 	do 	not 	support 	the
defendant’s estoppel argument.
Conclusion
Because the appellate record demonstrates that none of the elements
for entitlement to arbitration in this case were met, the trial court erred in
ordering 	arbitration. 	We 	reverse 	the 	trial 	court 	order 	compelling
arbitration and remand for further proceedings.

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Reversed and remanded for further proceedings.
MAY and C IKLIN, JJ., concur.
* 	* 	*
Not final until disposition of timely-filed motion for rehearing.