Legally Speaking: Construction Claims, Basic Causes

Our new monthly series on construction law is authored by J. Norman Stark, an Attorney-at-Law and Architect Emeritus, (AIA, NCARB) with over 40 years of experience in construction and consulting expertise in construction accidents and disputes.

Construction claims rely upon basic legal principles for success, beginning with entitlement. While there may be entitlement but no provable damages, or damages with no provable entitlement; there can be no recovery, since both—entitlement and damages—are essential to recovery! Construction contracts include many of the following terms (abbreviated here):

• Acceleration. Completing the scope of work earlier than the schedule.

• Cardinal Change. Change in the scope of work affects progress, time, cost.

• Constructive Change. Direction of the contractor; performance compensable.

• Contract Termination. Contractor entitled to payment for work performed or for lost profit for work canceled.

• Defective and Deficient Construction Documents. Implied warranty of accuracy and completeness for work to be performed.

• Schedule Delay. Material departure from planned work activity.

• Differing Site Conditions. Latent or concealed conditions varying from contract representations by Owner.

• Directed Change. Owner’s unilateral change from contract terms; compensable.

• Implied Warranty. Assurance of accuracy and completeness of construction documents.

• Impossibility of Performance. Performance not merely difficult, but actually cannot be performed.

• Maladministration. Deficient, Overzealous or unreasonable project management by owner or project manager.

• Owner Furnished Items. Deficiency in goods or services, varying from contract terms.

• Schedule. Assigned dates for project activity, matching resources of equipment, materials and labor with project work tasks over time.

• Strikes. Adverse impact to contractor’s work by labor conditions.

• Superior Knowledge. Required disclosure of specific information of Owner, affecting contract performance.

• Weather. Adverse impact upon performance by historically unanticipated weather conditions.

• Work Suspension. Owner’s temporary or permanent suspension of work; compensable to the contractor for unabsorbed office overhead, etc.

jnstarkJ. NORMAN STARK is an Attorney-at-Law, Architect Emeritus, (AIA, NCARB), admitted to practice law before the Bar of Ohio, the US District Courts, Ohio, the US Court of Appeals, and the U.S. Supreme Court. He has over 40 years of experience in construction and consulting expertise in construction accidents and disputes. He has professional experience in Business and Personal legal claims, Real Estate, Public and Private Construction, Litigation, Arbitration, Mediation, and Expert Witness services.  His office is in Cleveland, Ohio.

His experience includes forensic expertise and investigation in construction contracts, construction law, products liability, construction claims, claims and loss damages, work injuries, construction defects, mechanics’ liens, jobsite injuries, jobsite deaths, architecture, building codes, standards, water intrusion, mold, lead contamination, copyright, and design defects. Mr. Stark is the author of the Construction Claims Investigation Worklist©

3 thoughts on “Legally Speaking: Construction Claims, Basic Causes

  1. Reading yours article on construction claims has really help me . I’m a small business and I have one client that owes me 50,000 and refuses to pay me for change orders I have typed out change orders I got comfortable and he quit sign him and now he claims he did not want the work completed ? That all he wanted was a bid but allowed me to do the job ? It’s pretty crazy I leaned his home which what Lane is due 16 September and I do not have a lot of money to fight it so I am going to do it myself .

  2. I have been refused to be allowed to do my own testing with a nuclear gage.Thats all I wanted to run as far as testing. Project engineer says I will have to get lab approved by WES, Vicksburg District. Previous area engineers approved me to perform test of this nature. I have set up testing labs whole 9yds had them approved but all I want to do on this project is perform densities and hire a private lab to perform proctors, atterburgs, seive analysis etc. I saw somewhere a legal case where this same situation existed and the out come was in favor of the contractor performing his on densities. Thank you for your reply.

  3. Dear Mr. Quinn: Sorry to hear of your problem; I can’t find the case to which you refer. I suggest you contact the controlling authority on the project and, in writing (by U.S. Mail, Certified, with Receipt Requested), request what specific laws, codes, statutes or other requirements are there in effect, to qualify and permit you to do the testing work you can provide? Good luck! Sincerely, J. Norman Stark

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