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Delay Notice Provision Won't Bar Recovery Without An Express Condition

Friday, September 21, 2012 05:51 am


Most construction contracts include detailed notice requirements that can easily thwart contractors' attempts to seek extra time and/or money if not strictly adhered to. Delay claims, in particular, often come with notice provisions attached. There are many cases in which contractors have been barred from delay damages recovery for failure to send proper letters, faxes, e-mails, or whatever was required.

When reviewing contracts with an eye toward delay damages, look out for notice provisions that form conditions precedent to payment--and be especially alert to notice that is required to be given contemporaneously with project progress (or lack thereof).

Courts enforce contemporaneous notice requirements

For example, the contract at issue in City of Houston v. Gribble, 542 S.W.2d 242, 244 (Tex. Civ. App. Tyler 1976 writ ref'd n.r.e.) stated: "No claims for extension of time will be considered unless the claim is filed between the first (1st) and the fifteenth (15th) of the month in which the delay was occasioned."

Another example: In Associated Mechanical Contractors, Inc. v. Martin K. Eby Construction Co., Inc., 271 F.3d 1309, 1315 (11th Cir. 2001), the contract required notice of delays to be "filed in writing ... within ten (10) days ... otherwise, any such claims will be considered void."

Right to delay damages recovery was not conditional

In a more recent case, the contractor was not required to strictly comply with the contract's notice requirements. A court ruled that the requirements were not a condition precedent to the contractor's right to recover delay damages. And, anyway, the contractor had complied enough, if not thoroughly.

In Balfour Beatty Rail, Inc. v. The Kansas City Southern Railway Co., 2012 U.S. Dist [...]

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