(1) Any person who files a verified statement of a claim or asserts a claim against a principal or surety that has furnished a bond under this article 26 for an amount greater than the amount due without a reasonable possibility that the amount claimed is due and with the knowledge that the amount claimed is greater than the amount due, and that fact is demonstrated in any proceedings under this article 26, shall forfeit all rights to the verified statement of claim and shall be liable to the following in an amount equal to all costs and all attorney fees reasonably incurred in bonding over, contesting, or otherwise responding in any way to the excessive verified statement of claim or excessive bond claim:
(a) The person to whom or which a disbursement would be made but for the verified statement of a claim or bond claim; or
(b) The principal and surety on the bond.
(2) An award by a court having jurisdiction of an amount that is less than the amount in a person's verified statement of claim does not render that amount excessive for purposes of subsection (1) of this section if the person had a good faith basis to believe the amount in the verified statement of claim was due at the time of filing.
(3) For purposes of this section, "amount due" means the amount of money a person reasonably believes, in good faith, represents the value of the labor, materials, sustenance, other supplies, laborers, rental machinery, tools, or equipment, furnished or supplied to a contractor, as defined in section 38-26-101, or their subcontractor, whether or not the amount is unliquidated or disputed, as set forth in section 38-26-107 (1).
Source: L. 2003: Entire section added, p. 1690, § 2, effective September 1. L. 2026: IP(1) amended and (2) and (3) added, (SB 26-074), ch. 39, p. 187, § 4, effective August 12.
ANNOTATION
The purpose of the verified statement of claim process is to secure reimbursement for labor and materials actually provided. Wadsworth Constr. v. Reg'l Rail Partners, 2024 COA 78, 558 P.3d 641.
Whether a verified statement of claim is excessive is an issue of fact, and a court views the matter in light of the information available at the time of filing to the person who filed the verified statement of claim. Wadsworth Constr. v. Reg'l Rail Partners, 2024 COA 78, 558 P.3d 641.
An amount is not "due" for purposes of calculating a verified statement of claim if it will only be owed upon some contingency or after the satisfaction of a condition precedent because the mere fact that certain amounts might be recoverable in a breach of contract claim does not make those amounts lienable. Wadsworth Constr. v. Reg'l Rail Partners, 2024 COA 78, 558 P.3d 641.
A claimant's acknowledgment that a part of the amount claimed "might at some stage in the future" be paid indicates knowledge that the amount claimed was not due when the statement of claim was filed. Thus, the verified statement of claim was excessive. Wadsworth Constr. v. Reg'l Rail Partners, 2024 COA 78, 558 P.3d 641.
Remedy for excessive statement of claim. A person filing an excessive statement of claim forfeits all rights to pursue any remedy for that claim. Wadsworth Constr. v. Reg'l Rail Partners, 2024 COA 78, 558 P.3d 641.