I concur in the result reached by the majority that SCDOT is liable to Sloan Construction under our holding in Sloan I, and that SCDOT did not meet its burden in proving Sloan Construction failed to mitigate its damages. However, I strongly disagree with the majority’s suggestion that Sloan I is no longer binding precedent.
The Court already squarely addressed the issue of the SCDOT’s continuing duty to secure and maintain a bond under the SPPA in Sloan I, despite the majority’s contention to the contrary. The majority relies on the statement in Sloan I that a governmental agency’s liability under the SPPA can be premised on that agency’s “failure to secure and maintain statutory bonding as required by the SPPA” as the determining factor of SCDOT’s liability in the present action. Sloan /, 377 S.C. at 120, 659 S.E.2d at 165 (emphasis added). However, after stating that Sloan I is binding precedent under the law of the case doctrine, the majority opinion then effectively overrules Sloan I by holding it has no future application. In my view, we held in Sloan I that SCDOT had a continuing duty to secure and maintain a bond, and for this reason, we should now affirm accordingly.
Furthermore, it is my opinion that we correctly interpreted the SPPA to require a continuing duty to maintain a bond in Sloan I. See S.C.Code Ann. § 29-6-20(3) (stating that “it is the duty of the entity contracting for the improvement to take reasonable steps to assure that the appropriate payment bond is issued and is in proper form.”). It is my firm belief that the legislature did not intend to protect a governmental entity at the expense of an innocent (and extremely vulnerable) subcontractor in enacting the bond requirement of the SPPA.2
Therefore, I would affirm the order of the circuit court because SCDOT had a continuing duty to maintain the construction bond under our holding in Sloan I. For this reason, I concur in result only.
. I note that the actions of SCDOT in this case were particularly egregious, in that the agency possessed knowledge of Amwest's financial dissolution and was aware of Southwest’s failure to secure a replacement bond, yet when charged with this knowledge, SCDOT paid Southwest anyway.