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Tuesday, October 23, 2012 05:07 am


Contract Termination -- Payment

U.S. f/u/b/o CKF Excavating, LLC v. ACC Construction, Inc., 2012 U.S. Dist. Lexis 109070 (W. D. Ky. Aug. 3, 2012)

A sub can use government-certified progress payment requests to counter a contractor's contract breach claim with a beach claim of its own.

ACC Construction, Inc. (ACC) was the prime contractor on a U.S. Army Corps of Engineers project to construct a facility in Fort Campbell, Kentucky. CKF Excavating, LLC (CKF) performed grading and excavating subcontract work until ACC terminated its subcontract for contract breach. CKF countered with a contract breach claim under the Miller Act against ACC, using as support several Prompt Payment Certifications, which requested payment for work performed totaling $262,000. ACC argued that the contents of these certifications were irrelevant to calculating proper damages and establishing contract breach--and therefore inadmissible. (See Fed. R. Evid. 402.) The court disagreed.

First, in the absence of a governing contract provision, the parties disputed the proper measure of damages in the event that CKF was terminated for its own default. The court pointed out that "[t]he measure of damages for breach of contract is 'that sum which will put the injured party into the same position he would have been in had the contract been performed.'" Hogan v. Long, 922 S.W.2d 368, 371, 42 12 Ky. L. Summary 32 (K [...]

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