In a January 2026 decision, Florida’s Fourth District Court of Appeal drew a clean, important line in construction-law disputes involving lien transfer bonds and arbitration. The case—ANDERSEN SERVICE CORPORATION v. OLD REPUBLIC SURETY COMPANY—is worth the attention of contractors, subcontractors, developers, and sureties alike.

The takeaway is straightforward but consequential: a surety cannot force arbitration unless there is an actual arbitration agreement binding the surety. Courts will not manufacture one by implication.

What follows is why that matters.

The Dispute in Plain Terms

Andersen Service Corporation was a subcontractor on a construction project. Its subcontract was with the general contractor, Marco Contractors, Inc. That subcontract contained a dispute-resolution clause—but with a twist. It allowed only Marco, the general contractor, to elect arbitration or litigation. If arbitration were chosen, it would occur in Pennsylvania.

Old Republic Surety Company was not a party to that subcontract.

After Andersen was not paid, it recorded a construction lien. As Florida law allows, the lien was transferred to a lien transfer bond under section 713.24, Florida Statutes. Marco posted the bond, and Old Republic issued it as the surety.

Critically, the bond did not incorporate the subcontract. It did not reference the subcontract. It did not contain an arbitration clause. It simply stated that it was issued pursuant to Florida’s lien-transfer statute and was recorded in Broward County.

Andersen then did exactly what the statute contemplates: it filed a single statutory claim against the lien transfer bond in Broward County—naming the surety, Old Republic, as the defendant. Marco was not sued.

Old Republic responded by moving to compel arbitration in Pennsylvania.

The trial court granted the motion. The Fourth DCA reversed.

The Legal Framework: Arbitration Is Contractual

Florida courts apply a familiar three-part test when deciding whether to compel arbitration:

1. Is there a valid written agreement to arbitrate?
2. Is there an arbitrable issue?
3. Has the right to arbitrate been waived?

If the first element fails, the inquiry is over. Arbitration is a matter of contract, not equity or convenience.

Here, the court found the failure obvious. Old Republic never signed the subcontract. The bond did not incorporate the subcontract. The bond did not contain arbitration language of its own. There was no written agreement to arbitrate between Andersen and Old Republic.

That alone was fatal to the motion.

Why the Surety’s Arguments Failed

Old Republic advanced two familiar theories.

First, it argued that its obligations as a surety were “coextensive” with those of the contractor, relying on older Florida cases involving performance bonds.

The court rejected that analogy. Those cases—such as Henderson and Woolley/Sweeney—turned on one key fact that was missing here: the bond in those cases expressly incorporated the underlying contract, including its arbitration clause. Incorporation matters. Without it, there is nothing to enforce.

Second, Old Republic invoked equitable estoppel, arguing that Andersen should be bound to arbitrate because its claim ultimately related to the subcontract.

Again, the court said no. Equitable estoppel does not allow a non-signatory to cherry-pick rights that the contract itself reserves to someone else. The subcontract gave only Marco the right to elect arbitration. Marco was not even a party to the lawsuit—and never exercised that right.

A surety cannot step into the principal’s shoes to exercise unilateral rights the principal itself has not invoked.

Why This Decision Matters

This opinion reinforces several practical realities in Florida construction litigation:

• Lien transfer bond claims are statutory. They are not automatically governed by the dispute-resolution provisions of the underlying contract.
• Arbitration clauses are enforced as written—not expanded by implication.
• Sureties gain rights through contract language, not by status alone. If a bond does not incorporate an arbitration provision, the surety does not get arbitration.
• Venue manipulation through arbitration motions will be scrutinized closely, particularly where the statute contemplates a local forum.

For subcontractors, the decision is reassuring. It preserves the statutory remedy the legislature created and prevents it from being displaced by arbitration clauses to which the subcontractor never agreed vis-à-vis the surety.

For contractors and sureties, the lesson is equally clear: if arbitration with the surety is desired, the bond must say so—explicitly.

Bottom Line

The Fourth DCA’s decision is not anti-arbitration. It is pro-contract. Arbitration remains favored in Florida, but only when the parties actually agreed to it.

In construction disputes, details matter. Where a lien transfer bond is silent on arbitration and does not incorporate the underlying contract, a surety cannot compel a subcontractor to arbitrate—especially not in another state.

That clarity is good for everyone involved.