Masonry Magazine June 1987 Page. 38
Under what circumstances are claims filed against the mason contractor?
A. If a subcontractor working under subcontract for you encounters additional cost or requires additional time to complete his work due to delays by you or the general contractor, a possible claim against you exists. A subcontractor must look to the contractor he works for to pay any damages he has suffered.
How do mason contractors avoid having claims filed against them?
A. Minimize the risk of claims being filed against you by including a provision in your subcontracts which does not obligate you to pay for any claim, unless you receive the funds from the general contractor or owner. You may incorporate the same rights for recovery available to you in accordance with your contract with the general contractor, or be even more stringent in the causes for which you will grant payment.
How is a claim initiated?
A. Since a claim is a disputed change order, not only must you present appropriate documentation, but you must also make timely identification and provide notification of a potential claim in writing. Submission of a timely written notice in accordance with the provisions of the contract documents is the first and most important step in the claims process. Without the written notice, courts have been known to throw out valid claims. The provisions in your contract that specify how proper notice is to be provided are extremely important.
Notice does not have to be elaborate; it can be extremely short, but in written form indicating that you have encountered a problem, identifying the problem and specifying that there may be potential increase in the time and cost of performance. Even if there is any doubt in your mind that there may in fact be a claim for a certain action, provide the notice today-don't wait. If later, no claim arises, you may drop the matter by simply not following up on the item. After you have notified the owner or general contractor, the next step in the claims process is to present your documentation. Even if you are entitled to additional compensation, without the documentation, your right to recovery may be denied. The ultimate burden of proof of any claim is on you.
How are claims resolved?
A. If claims cannot be resolved by negotiation, they are resolved in accordance with the agreement you have with the general contractor or with the owner. If the contract documents do not include an agreement to arbitrate, then the only option is to litigate. The best solution for all parties is to negotiate the claim, because negotiation generally allows settlement in 6 to 8 months.
If a claim cannot be resolved by negotiation, then continued on page 41
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2000 Industrial Ave.
Sioux Falls, SD 57104
(605) 334-2827
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