Masonry Magazine October 2003 Page. 38
LEGAL
First and foremost, delay claims are complicated and expensive to prosecute. As the need for detail and information increases, and as the lawyers' analysis extends into different trades, the complexity of the case expands exponentially. You can expect the hours spent by the lawyer and resulting bills to increase exponentially as well. Imagine paying a lawyer by the hour to review every page of every document ever issued on a construction project - every letter, every memo, every contract and every note - and you are starting to comprehend the complexity and expense of these claims. In addition, delay experts are extremely expensive and they must also engage in the same scope of review and analysis of documents.
If you are involved in a potential delay claim of any magnitude, I would strongly recommend that you immediately hire an experienced lawyer. Most projects involving large-scale delay claims warrant retention of a lawyer early in the process to assist you with review of documents, preparation of protective correspondence, and general advice about how to document or defend the claims during the job.
It is absolutely critical that you provide timely notification of your potential claims and that you properly document these claims. If you fail to comply with your contract's notice of claims provisions, you may have ended the case before it is even started. Finally, you need to review, analyze and understand all of the contract documents on the job. This includes not only your subcontract and the masonry specifications, but also the general contractor's contract, the specifications regarding submittals, the scheduling specifications, and the specification provisions relating to extensions of time and change orders. On most projects, the subcontractor is bound to the terms of the general contract. In many instances I have seen, the subcontractor has never even requested, let alone seen, the GC's agreement until a problem has occurred. It is bad enough to have onerous terms of a subcontract jammed down your throat over objection, but it is far worse to sign off on harsh terms sight unseen without understanding their potential impact on your claims. This is particularly true of claims notice provisions and provisions relating to the recoverability of delay damages and time extensions.
Delay claims are highly complex, expensive and difficult to prosecute or defend. You need to understand the contract terms and scheduling provisions before starting a job to protect your company and ensure that you can either prosecute or defend any delay claims on your projects.
Timothy R. Hughes, Esq., is the principal of the Northern Virginia law firm of Hughes & Associates, P.L.L.C. He specializes in construction litigation, corporate and business related representation, and complex civil litigation. He may be reached at tim@hughesnassociates.com.
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