In a recent case entitled Greg Opinski Construction v. City of Oakdale, 199 Cal.App.4th 1107 (2011) a California Appellate Court held that when a construction contract requires notice be given as a condition for getting an extension of time and notice is not given, the contractor cannot later claim that the delay was caused by the owner. This is noteworthy since it refutes prior precedent that allowed a contractor to assert that the liquidated damages should not be assessed since the public entity delayed the project during a period of owner caused delay.
This decision could have a significant impact on disputes concerning project delays and liquidated damages. While most sophisticated construction contracts include claim provisions relative to schedule extensions for non-contractor cause delays, these provisions are often time ignored by the parties. Many contractors operate under the assumption that regardless of the “fine print” in their contracts requiring notice of delay events, that ultimately a change order or favorable court judgment can eventually be secured so long as the contractor can prove that the owner (or non-contractor caused factors) caused the delay. The Opinski decision makes it clear that simply having the facts on your side is not enough, and that the technical requirements of the “fine print” claim provisions must be complied with.
See a more thorough article on this issue at our website, here.