Increasingly, two or more contractors may each have a separate contract with the owner for different portions of the work on a single project.
Interference may arise, for example, from one contractor’s storage of materials on a site where the other has work to perform, or from one contractor’s failure to progress with work that is preliminary to the other’s work. There is ordinarily no direct contact between the separate prime contractors and the owner may disclaim responsibility for any lack of cooperation between them.
Although an older case, the decision in Moore Construction Co. v. Clarksville Dept. of Elect., 707 S.E.2d 1 (Tenn. 1985), illustrates such a situation. In Moore, a prime contractor brought suit against a co‑prime claiming the following: defective work by the co‑prime and its subcontractors; co‑prime’s storage of materials on the work site instead of in agreed storage areas; trash strewn by co‑prime; and co‑prime’s false assurances regarding the date when the site would be available to the delayed prime.
The court’s decision laid out very succinctly the facts that support a claim of interference against another prime contractor:
Unless the construction contracts involved clearly provide otherwise, prime contractors on construction projects involving multiple prime contractors will be considered to be as intended or third party beneficiaries of the contracts between the project’s owner and other prime contractors . . . The courts have generally relied upon the following factors to support a prime contractor’s third party claim:
a. The construction contracts contain substantially the same language;
b. All contracts provide that time is of the essence;
c. All contracts provide for prompt performance and completion;
d. Each contract recognizes the other contractors’ rights to performance;
e. Each contract contains a non‑interference provision; and
f. Each contract obligates the prime contractor to pay for the damage it may cause to the work, materials, or equipment of other contractors working on the project.
In addition to claims against the other contractor, claims may also be made against the owner for failure to coordinate the work.
Question: What do you think are the most important factors supporting a claim like this?