§4813. Liability of the surety

A. The surety is liable without benefit of discussion or division.

B. If the total amount owed to persons to whom the surety is liable exceeds the total amount of the bond, the surety's liability shall be discharged in the following order:

(1) First, and pro rata, to persons who preserve their claims in the manner required by R.S. 9:4822.

(2) Second, and in the order in which they present their obligations to the surety, to persons who do not preserve their claims as required by R.S. 9:4822 but to whom the contractor is otherwise liable.

(3) Third, to the owner.

C. The liability of the surety is not extinguished by a deficiency in the amount of the bond, the failure to attach the bond to the notice of contract, or the failure to file the notice as required by R.S. 9:4811.

D. An action shall not be brought against a surety, other than by the owner, before the expiration of the time specified by R.S. 9:4822 for claimants to file statements of their claims, unless a statement of the claim in the form required by R.S. 9:4822(G) is delivered to the surety at least thirty days prior to the institution of the action.

E. The surety's liability, except as to the owner, is extinguished as to all persons who fail to institute an action asserting their claims or rights against the owner, the contractor, or the surety within one year after the expiration of the time specified in R.S. 9:4822 for claimants to file their statement of claim or privilege.

Acts 1981, No. 724, §1, eff. Jan. 1, 1982.