Active Interference Wins Skee Ball Points and Precludes Enforcement of A “No Damages for Delay” Clause

Last week during family skate night, my daughter asked me for two quarters to play some Skee-Ball. I loved playing that game as a kid. But imagine my surprise when I turned the corner and witnessed her active interference with the rules of the game! (… Truly, you can’t script this stuff…)

In construction contracts, “active interference” is a recognized exception to the enforcement of what is known as a “no damages for delay” clause. This type of provision seeks to preclude any increased costs associated with delays on the project. For example, a traditional clause may read as follows:

“No claims for increased costs, charges, expenses or damages of any kind shall be made by the Contractor against the Owner for any delays or hindrances from any cause whatsoever; provided that the Owner, in the Owner’s discretion, may compensate the Contractor for any said delays by extending the time for completion of the Work as specified in the Contract.”

* * * * * *

“Should the Contractor sustain any damage through any act or omission of any other contractor having a contract with the Owner or through any act or omission of any Subcontractor of said other contractor, the Contractor shall have no claim against the Owner for said damage.”

In the a regularly cited case, United States Steel Corp. v. Missouri Pacific Railroad Company, 668 F.2d 435 (8th Cir. 1982), the court recognized that “no damages for delay” clauses are valid, but that there are numerous exception to the rule. In that case, the Owner issued a notice to proceed to the bridge superstructure contractor with knowledge that substructure work would not be completed on schedule. As a result, superstructure contractor was delayed for 170 days while waiting for access to work site. The contract contained a “no damages for delay” clause specifically making reference to delays caused by substructure contractor.

In the end, the court recognized that “no damages for delay” provisions are generally enforceable except as to delays: (1) not contemplated by the parties under the provision; (2) amounting to an abandonment of the contract; (3) caused by the owner’s bad faith; or (4) amounting to active interference. Since the Owner issued the notice to proceed with knowledge of the substructure delays, the Court concluded that the Owner was guilty of active interference. Accordingly, the superstructure contractor was entitled to recover on its delay damage claim.

Lesson Learned. The real lesson is to make sure to review your contract for these types of provisions and try to negotiate the terms. For example, the AIA A201 expressly provides that the owner and contractor may seek damages from each other in the event of a delay caused by the other party. There will be certain notice and substantiation requirements, but it is common to allow a party to seek damages for delay. If an owner is unwilling to remove a no-damages-for-delay clause in your contract, then you should try to limit its application to certain delays such as delays caused by others, leaving the owner liable for its own delays.

Words and Numbers: Contractor Forfeits Bid Bond When It Mistakenly Leaves Out “Thousand” Word

By Matthew DeVries on May 21, 2018 Posted in Alabama, Case Law, Legal Trends

Contractors make mistakes with words. Contractors make mistakes with numbers. And sometimes, a mistake with words leads to a mistake with numbers.

In Clark Construction Co. v. Alabama Highway Department, a highway contractor tried to withdraw its bid on public contract and have its bid bond returned after it made a mistake on a its written proposal. In its bid submission for a bridge construction project in Mobile County, the contractor had listed a total bid amount of $1,119,609. On a particular line item for Steel Bridge Superstructure, the contractor listed the amount of “$368,000” in numerical value, but had the words “Three Hundred Sixty Eight” immediately before the word “Dollars.” The contractor mistakenly left out the word “Thousand” from its written bid.

During the bid review, the Alabama Highway Department used the written words to calculate the total bid, as required by statute. Alabama Code Section 39-2-7 provided: “In case of a discrepancy between prices shown in the figures and in words, the words will govern.” The Department determined the contractor’s bid to be $816,977.60, as opposed to the $1,119,609 intended to be submitted by the contractor.

After learning about the error, the contractor asked permission to withdraw its bid on the basis of the mistake, but the Department refused to permit the bid to be withdrawn. The contractor then refused to accept the job, and so the Department forfeited the contractor’s $10,000 bid bond. The trial court ruled in favor of the Department.

The appellate court affirmed the decision, finding that the “words over numbers” statute was to be strictly construed. In light of the potential damages the contractor could have lost due to its mistake, the forfeiture of the bond (which was also required by the statute) was not excessive and otherwise fair.

Clark Construction is a good reminder to public contractors to pay close attention to bid tabulations. If there are errors in your written proposal, understand that the RFP or the applicable law will control how the error is to be resolved.

Say What? The Rise of Criminal Liability for Construction Accidents

By Matthew DeVries on May 18, 2018 Posted in Best Practices, Safety

Today’s guest post is by Chris Meyers and Cheri Gatlin, two of my fellow partners at Burr & Forman, LLP. Chris is a partner and Cheri Gatlin is Chair of the firm’s Construction and Project Development Practice Group. The Group counsels clients throughout the U.S. on safety policies, OSHA and regulatory compliance, contracts, disputes, and all areas where law and construction intersect.

“To err is human; to forgive divine.” – Alexander Pope, “An Essay on Criticism.”

Last week marked the end of Construction Safety Week 2018, a combined effort by the Construction Industry Safety (CISI) group and the Incident and Injury Free (IIF) CEO Forum. Together these entities are comprised of 80 national and global construction firms, with a goal of promoting safety in the construction industry. Concern for safety is apparent on construction projects throughout the country and world, as evidenced by daily/weekly construction briefings and the familiar “___Days Since a Lost Work Accident” signs. People that work in the Construction Industry know firsthand the dangers and want to see their co-workers go home safely to their families after a long day. In addition, time is money in this business. Safe projects are more likely to be profitable projects due to lack of delays and prevention of claims for jobsite injuries. For employers, criminal liability for job site construction accidents is more and more a concern. Mainstream headlines highlight several cases where construction accidents = criminal charges.

From the well-publicized October 21, 2016 drowning of two construction workers in Boston after a trench in which they were working collapsed, to the March 18, 2018 pedestrian bridge collapse at Florida International University (FIU), which killed 6 and injured 9 more, construction accidents that result in loss of life are commonly viewed as more than “accidents.” There appears to be a trend toward construction incidents being investigated by various agencies for criminal liability. Inevitably, accidents happen in every area of life, from “fender bender” automobile accidents to high profile construction accidents, which result in extensive property damage and, unfortunately at times, loss of life. When, though, is an accident something more?

With regard to the Boston trench collapse, the Suffolk County District Attorney’s office presented evidence of manslaughter against the employer—both as a corporate entity and the company’s owner—related to the accident. There, the deceased were killed when underground materials supporting a hydrant in an allegedly unshored hole they were digging gave way and the hydrant burst, flooding the trench. Prosecutors claim the employer was pushing the men to work faster because the project was behind schedule. Motions to Dismiss manslaughter charges were considered and denied, leaving the employer and its owner subject to criminal prosecution. In an industry where liquidated damages and other pressures lead to acceleration, this is a headline of note.

In Florida, we await all the facts on the FIU bridge collapse, a decision by the Dade County State Attorney’s office on possible criminal action. However, a charge of “Culpable Negligence” could be in play. In Florida, the crime of Culpable Negligence is defined as a course of conduct “showing reckless disregard for human life, or for the safety of persons exposed to its dangerous effects, or . . . which shows wantonness or recklessness . . . [or] an indifference to the rights of others as is equivalent to an intentional violation of such rights.”

As Construction Safety Week concludes, Burr congratulates all our clients that participated in the activities. Focusing on safety is critical to the industry’s success and the life and livelihood of those who rely upon it.

How Important Is That Little Green Card? Pretty Darn Important Says One Court.

By Matthew DeVries on May 17, 2018 Posted in Case Law, Claims and Disputes, Georgia, Legal Trends

We live in a world of e-mails, IMs, texts, Snapchats, Instagrams and the occasional fax. Although information is transmitted instantaneously in today’s environment, proof of receipt of that information (often called “Notice”) remains subject to some very strict rules imposed by contract, case law or statute.

Notice of Claims. In a recent transportation case involving a personal injury, Department of Transportation v. Jones, the Court of Appeals of Georgia explained the importance of strict compliance with certain notice provisions. The plaintiff was injured in a single-car accident on State Route 42 and he sued the Georgia Department of Transportation (“GDOT”). The plaintiff claimed that GDOT’s improper maintenance of the roadway led to an accumulation of water, which caused his truck to hydroplane into a tree, severely injuring him. GDOT filed a motion to dismiss, arguing that the plaintiff failed to strictly comply with the notice provisions of the Georgia Tort Claims Act (“GTCA”). The trial court denied that motion and the Court of Appeals reversed.

The Green Card. The GTCA requires that notice of the claim be sent to “the Risk Management Division of the Department of Administrative Services.” At the hearing, the plaintiff presented the following evidence: (a) the notice letter; (b) the green return receipt card sent to the Commissioner of GDOT; (c) a response letter from the Risk Management Division acknowledging receipt of the notice letter; and (d) a U.S. Postal Service tracking document showing that “something was sent by certified mail to the Department of Administrative Services.

The Holding. Despite this evidence, the Court held that the plaintiff failed to strictly comply with the statute because there was no proof by the plaintiff that the letter was sent by certified mail to the Risk Management Division. The green card submitted showed proof of delivery to the Commissioner of GDOT. The attorney for GDOT admitted in court that the notice letter received by the Commissioner of GDOT was then sent internally by the Commissioner’s office to the Risk Management Division, which then sent the acknowledgement letter. Nevertheless, the plaintiff did not comply with the statute requiring that he sent notice of the claim to the Risk Management Division.

So What? While this may seem like a hyper-technical application of the rule, that’s precisely what “strict construction” means according to one court in George. Whether you are contractor, developer, specialty subcontractor, or professional service provider in the construction industry, the real lesson learned is to read the express terms of any applicable contract or statute when a dispute arises, and follow both “the letter and the spirit” of the law.

Do Not Pass “Go” You Out-of-State, Unlicensed Contractor

By Matthew DeVries on March 20, 2018 Posted in Case Law, Legal Trends

I forgot how much fun it was playing family board games as a child. We recently dusted off some of the oldies like Sorry, Life and Monopoly to play with the kids. I laughed uncontrollably the first time I got to say, “Go directly to jail. Do not pass GO. Do not collect $200!”

A contractor in North Dakota wasn’t laughing when it was not allowed to pass “Go” and could not immediately collect its $200,000 for work performed. In Snider Construction v. Dickinson Elks Building, LLC, the court held a contractor was not entitled to recover for labor and materials during a time period when the contractor was unlicensed. There, the out-of-state contractor entered into the construction contract on December 26, 2011, but did not get its contractor’s license until February 5, 2012. The contractor later filed a lien for approximately $200,000. The trial court awarded the contractor its claim for damages, and the owner appealed.

On appeal, the owner argued that North Dakota Code requires a contractor be licensed at the time of contract formation or commencement of work under the contract to maintain a claim or action related to the work performed under the contract. Because the contractor did not obtain a license until after it had entered into the contract with the owner and started working on the project, the owner claimed that the contractor barred from bringing any claim.

While the contractor was unable to pass “Go” to immediately collect its $200,000, its claims were not totally lost. The appellate court held that although the contractor could not recover for labor and materials during period that it had not received license (i.e., the lien claim), the contractor was entitled to recover in quantum meruit and unjust enrichment for labor and materials provided after it was granted a license.

Depending on your state, you may or may not be able to maintain an action as an unlicensed contractor. For example, Arizona requires a valid license at entry into contract and when cause of action arose; Utah requires a valid license at time of contracting and “[c]ontinuously while performing the work for which compensation is sought”; and North Dakota bars all claims only during a period of time the contractor was not licensed. If you work in another state, make sure you pass “GO” (…get licensed…) and collect your $200.

In Construction, There’s A Tattletale And There’s What is Right

By Matthew DeVries on March 5, 2018 Posted in Best Practices, Claims, Federal Construction

Sometimes, we avoid doing bad things because of the risk of getting caught. Other times, we avoid doing bad things because we simply choose to do right things. Whatever the camp you fall into, a recent government contracts case tells a story that should be avoided when submitting payment applications to the government.

In U.S. ex rel. Jesse Sloan v. Waukegan Steel, LLC, an employee brought a False Claims Act (FCA) against his employer for false billing and certification on a goverment project. The Attorney General has primary authority for enforcing FCA, but the law includes what is called a qui tam provision, which permits a private party to bring a civil action alleging fraud against the Government on its own behalf as well as on behalf of the United States. 31 U.S.C. § 3730(b). If the private party prevails, he receives a percentage of the recovery. 31 U.S.C. § 3730(d).

Waukegan was responsible for fabricating and installing the structural steel of project. The design specifications require that the contractors adhere to various professional codes, including those of the American Institute of Steel Construction (AISC), the American Society for Testing and Materials (ASTM), and the American Welding Society (AWS). The subcontractor was required to submit “fabrication quality control and weld inspection certificates” to the government before payment was issued. According to the employee, Waukegan did not have any of these certificates.

In Sloan, the president of the company allegedly asked the employee to fabricate the inspection certificates. When he refused, the president allegedly approached another employee who was not a qualified welding inspector. That employee fabricated the requested welding inspection certificates.

While the court’s decision focused on the type of allegations necessary to prove fraud on the FCA, the opinion is instructive to avoid FCA claims. To prove an FCA claim, a plaintiff must prove that (1) the defendant made a statement in order to receive money from the government, (2) the statement was false, (3) the defendant knew it was false, and (4) the statement was material to the decision to pay or approve the false claim.

Notably, the Court in Sloan rejected every defense raised by Waukegan and allowed the case to go forward. For example, the subcontractor argued that the funds were paid to the subcontractor by the prime contractor—as opposed to the Federal government—and thus there was no attempt to defraud the government. The Court disagreed: “Importantly, Congress subsequently amended the False Claims Act to clarify that the defendant need not intend for the government itself to pay the subcontractor’s claim; it would be contrary to Congress’s original intent in passing the law if even when a subcontractor in a large Government contract knowingly submits a false claim to general contractor and gets paid with Government funds, there can be no liability unless the subcontractor intended to defraud the Federal Government, not just their general contractor.”

In the end, you can choose to follow the law because you are fearful that one of your employees may become a tattletale, like the decision in Sloan, or because it is the right thing to do. Whichever the case, false and misleading statements submitted to the government will most likely be discovered and create problems for you.

Additional Insured Status: Playing the Speak-Out Game on a Construction Project

By Matthew DeVries on February 21, 2018 Posted in Best Practices, Case Law, Legal Trends

Last weekend we played Speak-Out: Kids versus Parents, a game where you use a plastic thingy to obstruct your speech capabilities. The winning team is the one that guesses the most phrases. Reading and understanding an insurance policy on a construction project can be a lot like understanding my kids playing Speak Out.

Proper insurance coverage is an important risk management tool for contractors, subcontractors, project owners/developers and design professionals. Whether you are required by contract or law, purchase and maintaining the appropriate coverage can help you avoid catastrophe on your project. Since there are so many types available, it is important to understand what is being covered…and what is not.

This was a hard lesson learned by a contractor recently in Vivify Construction v. Nautilus Insurance Co., a recent decision issued by the Appellate Court of Illinois. In that case, the contractor and subcontractor (and their insurance carriers) were pointing the finger at each other for injuries sustained by an employee of the subcontractor.

The subcontract agreement required the subcontractor to indemnify and hold harmless the contractor against claims of bodily injury resulting from the subcontractor’s work. The subcontract also required the subcontractor to include the contractor as an “Additional Insured” on its policy.

The insurance policy provided “Additional Insured” coverage for the contractor. But it also contained an endorsement that included an “employee exclusion,” which stated that the policy did not apply to bodily injury to the subcontractor’s own employees.

The Court was required to parse through the applicable contract and insurance provisions. In the end, the Court found that—despite the “Additional Insured” status of the contractor—the subcontractor’s insurance policy contained the broadened employee exclusion provisions. This ultimately negated coverage.

Vivify Construction addresses such a small portion of insurance coverage disputes on construction projects, but the lesson is far more impactful. Despite the difficulty in reading and understanding insurance coverages on a project, you are advised to specify in your contracts what types, amounts, and limitations are acceptable for a project. While cumbersome, don’t just rely on a certificate of insurance provided by a party, but ask them to get you a copy of the actual policy to review. Don’t try to figure out what was said after the dispute arises.

My Daughter Gets No Devastation Damages…And Neither Do You Government Contractor!

By Matthew DeVries on February 1, 2018 Posted in Case Law, Legal Trends

Our middle child of seven kids suffers from classic Middle Child Syndrome. She has the largest heart in the family, and yet every other minute is a moment of devastation, wrought with feelings of neglect, resentfulness and sadness. We love her and we have empathy, but—like government contractors who sometimes feel burned—there are no devastation damages available.

In Michael Johnson Logging v. USDA, CBCA 5089 (Dec. 22, 2017), a government contractor sought damages, including “business devastation” losses, under a timber sales contract with the United States Forest Department. During performance of the contract, the contracting officer suspended the contractor’s operations three times for a combined total of 27 days. Two times were imposed for cutting the wrong trees and one time was for failure to control run-off and prevent erosion. Notably, the Contractor did not challenge the suspensions at the time they were imposed, but instead took all required steps to remedy the alleged breaches.

In its certified claim to the Government, the Contractor alleged numerous components of damages:

$741,837 for lost productivity (due to the need to use crooked skid trails and small landings);
$22,000 for damage to equipment;
$54,000 for inadequate skid trails;
$52,600 for unreasonable suspensions of work;
$91,980 lost profit on unharvested timber; and
$150,000 business devastation damages.

The Board rejected the Contractor’s claims for business devastation damages, noting that these type of damages are “similar to a consequential damages claim where a contractor asserts that the Government’s actions caused the destruction of its business.” The court concluded:

While contractors may recover damages resulting from “the natural and probable consequences of the breach complained of … damages remotely or consequently resulting from the breach are not allowed.” Ramsey v. United States, 101 F. Supp. 353, 357 (Ct. Cl. 1951). Although not categorically disallowed, contractor claims for consequential damages premised on the destruction of the entire business or lost business opportunities have been denied where they failed to show a nexus between the damages claimed and the breach alleged.

Ultimately, the Board found the profits that the Contractor might have earned independent of the contract were not directly related to the supply contract and, consequently, were merely speculative. The Board concluded that that business devastation claim was be too remote.
This case is helpful in understanding the type of damages a government contractor can seek and the type of proof required to proceed on a hearing against the Government. Lost profits from collateral projects or lost net worth are generally too remote to be classified as a natural result of the Government’s breach. While devastating, these damages generally are not recoverable.

Disney Dad Reports About New Limitations Period for Construction Claims in Florida

By Matthew DeVries on January 25, 2018 Posted in Best Practices, Case Law, Legal Trends, Legislation

As a father of seven children, my wife has often accused me of being Disney Dad−something to do with the allegation that I am the “fun” parent who takes the children to movies all the time, serves ice cream for breakfast, and lets them sleep in their clothes at bedtime. Never have…never did.

While having nothing to do with Disney nor being a dad, there is a new law in Florida that went into effect on July 1, 2017 that governs the limitations period for actions other than to recover real property. This includes construction claims and clarifies when the limitations period begins to run. In its simplest terms, a statute of limitation is a time limit for bringing a lawsuit (i.e., you may have six years to file suit on a breach of contract dispute), and a regularly disputed issue is determining when the time period begins to run. (I posted more about that here.)

Under the old law in Florida, this exact issue existed—there was confusion about when the limitations period began. The old law provided that actions based upon the design, planning or construction of an improvement to real property shall be commenced within four years, and that the the period begins on one of the following:

the date of actual possession of the owner
the date of issuance of the certificate of occupancy
the date of abandonment if not completed
the date of completion or termination of the contract between the engineer, architect, contractor and his employer

If the action involves a latent (or hidden) defect, then the time runs from the time the defect is discovered or should have been discovered with the exercise of due diligence.

The new law clarified the “completion of contract” language above, stating: “Completion of the contract means the later of the date of final performance of all the contracted services or the date that final payment for such services becomes due without regard to the date final payment is made.”

So what? Well, as with most business owners and professionals like you, this Disney Dad likes clarity in order to avoid disputes, whether you are talking about fixing a construction defect, pursing a construction claim, or mitigating losses. If a defect was never discovered, and an owner had never made final payment, arguably the statute of limitations for such claims could be extended forever. The Florida legislature closed that loop.

“Paid in Full” Wives’ Tale True? When Endorsing A Check, Yes Ma’am!

By Matthew DeVries on January 22, 2018 Posted in Best Practices, Case Law, Claims and Disputes, Legal Trends

Long before I was an attorney, I heard this tale that if you endorsed a check that had the words “PAID IN FULL” written on the check, then you were accepting the check as full payment of what was owed. But I had never really thought about that legal principle because, “People don’t really do that, do they?”

In Triangle Construction Co. v. Fouches and Assoc., the Court of Appeals of Mississippi recently held that the PAID IN FULL principle—or what lawyers know as accord and satisfaction—barred a contractor’s claim for additional payment. The contractor won a bid to construct a water system in two local counties. Following completion of the project, the contractor filed a claim against the owner and engineer for damages allegedly resulting from the negligence of the owner and engineer.

Upon completion of the project, the owner sent contractor a check marked “Final Payment,” but the check did not compensate the contractor for its increased construction costs as a result of the delays or for the extracontractual project expansion. The contractor conceded that it cashed the check, but argued that it repeatedly asserted to the owner—including in a letter sent to then engineer—that it did not consider the “final payment” to be final and that it would continue seeking the remainder of what it was owed.

The court disagreed. Under Mississippi law, despite what the parties may argue was their intent, cashing a check marked “final payment” constitutes an accord-and-satisfaction agreement, which precludes that party from bringing future claims for additional payment. In Triangle Construction, the court held that the contractor’s claims against the engineer were barred by the doctrine of accord and satisfaction.

So, the “paid in full” principle is not just an old wives’ tale. Depending on your state’s law, if you negotiate a check that is marked “paid in full” or even “final payment” then you are risking the fact that you may be settling any claims you have. If you are a contractor that seeks to reserve those claims, then don’t cash the check if it is marked with special language on it.

Best Practices Construction Law

Best Practices Resources

Top Posts

Matthew DeVries