"Construction Delay and Disruption Claims An Overview"

by John Darling, Esq.

The oft-heard statement "time is money" is nowhere truer than

in the construction industry.

Owners, design professionals, and

contractors base their performance lost on the concept of time.

When construction takes longer than planned, owners and contractors
stand to lose.

Managing time in construction is difficult, as all

construction

projects

bear

some

degree

of

confusion

and

uncertainty.

Indeed, one court likened the conditions on a large

construction project to those on a battlefield:

" except in the middle of a battlefield,
nowhere must men coordinate the movement of
other men and all materials in the midst of
such chaos, and with such limited certainty
of present facts and future occurrences as a
huge construction project Even the most
painstaking planning frequently turns out to
be mere conjecture and accommodation to
changes [which] must necessarily be of the
rough, quick, and ad hoc sort, analogous to
ever-changing commands on the battlefield."1
Delay and disruption claims are some of the most expensive,
difficult, and time consuming of disputes to litigate.
Understanding these claims when they arise is key to proper
client representation.
Overview: Delay and Disruption Claims
The conditions that erupt into delay and disruption claims do
not occur in a vacuum.

Where the owner or the owner's agents --

Blake Construction Co. v. C.J. Coakley Co., Inc. (D.C. Ct. App. 1981) 431
A.2d 569, 575.

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construction manager, architect, engineer, etc.

delay or disrupt

the contractor, it is usually because the owner breached one or

more of its obligations to the contractor.

These obligations

include providing adequate plans and specifications, providing site

access,

cooperating

with

the

contractor

when

difficulties

or

problems are encountered, and making timely progress payments.

The Spearin Doctrine obligates owners to furnish contractors
with accurate construction plans and specifications.2
Doctrine is followed in

California.3

The Spearin

Unless an owner opts for a

comprehensive constructability review designed to ferret out any

ambiguities or omissions in the plans and specifications, defects
are typically not discovered until construction is underway.

At

this point with thousands of dollars being spent daily on labor,

material, and equipment, allegations fly from party to party and
chaos ensues.
material.

Contractors refuse to fabricate or buy critical

Architects and engineers contend that the plans and

specifications

are

complete

and

that

an

experienced

general

contractor should be able to properly read and interpret them.

owner is in a precarious position.

The

Further delays could result by

siding with one party; either way increased costs are inevitable.

United States v. Spearin (1918) 248 U.S. 132.

Public Contract Code Section 1104; City of Salinas v. Souza & McCue
(1967) 66 Cal.2d 217; Howard Contracting, Inc. v. G.A. McDonald Construction
(1998) 71 Cal.App. 138.

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The ability of the owner, contractor, and design professionals to
work proactively through legitimate disputes as to the adequacy of
a design makes the critical difference as to whether the project
will turn out to be successful or end up with multiple lawsuits
involving delay and disruption claims.4
Owners also cause or contribute to delay and disruption claims
by failing to provide adequate site access to the contractor.

If

site access is restricted because of easements, or if the owners

have not secured the necessary permits, a contractor's initial
construction plan may be stymied.

The inability to build according

to the planned sequence can lead to delay and disruption claims.

The owner timely paying the contractor provides the "mother's
milk" of jobsite productivity.
perform.

Subcontractors

who

Money motivates contractors to

are

not

being

timely

paid

are

reluctant to fully staff a project, and productivity invariably

fades.
Contractor's
largely

in

the

delay
arena

and
of

disruption

proper

responsibilities

planning.

Proper

fall

planning,

scheduling, sequencing, and coordination of work are the hallmark

of the contractor's obligations.

The contractor is the "Captain of

The term "disruption" used in this article includes claims sometimes

styled as labor productivity, loss of efficiency, impact, and hindrance
claims. This article does not include the subject of acceleration claims,
which are another subset of construction time-related claims. However, many
of the legal principles discussed herein bear on issues that arise in
acceleration claims.

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the

Ship"

and

is

responsible

for

coherent

construction plan in the form of a schedule.

typically

based

on

"critical

path"

and

logical

Schedules are

methodology.

If

the

contractor's schedule is flawed, either because it does not permit

enough time to complete critical components of the work or does not
layout construction in a logical sequence, delay and disruption
claims invariably arise.

Scheduling errors can cause further delay

or disruption as the work is not properly coordinated or sequenced.

Contractors frequently create "look ahead" schedules, designed
to show the work that will be performed in the next two or three
weeks.

Once the project starts, all the major subcontractors want

to start their work first, with as little interference from the

other

subcontractors

as

possible.

To

maximize

profit,

subcontractors are motivated to work quickly and expend as few manhours

as

possible.

If

the

prime

contractor

schedules

the

subcontractors so as to force them to work in confined spaces, the

subcontractors expend more man-hours to accomplish less work.

This

leads to a lack of productivity and labor cost overruns.

More

important, the environment becomes one where disruption claims can

be asserted.
Contractors can also delay a project by not ordering materials
on time, not providing a sufficient work force, and not installing
work pursuant to the plans and specifications.
Prosecuting and Defending Delay Claims
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If the project was not completed on time, the contractor
generally, not the owner, bears the burden of proof to establish:
(1) that it is not responsible for the delay, and (2) that the
reasons for the delay are those that give rise to owner liability.5
There

are

inexcusable.

basically

two

types

of

delay:

excusable

and

Excusable delay is one that occurs as a result of

events outside the contractor's control, such as acts of God

(floods, hurricanes), labor strikes, unusually severe weather and,
an inability to obtain critical materials due to plant closings and
product shortages.
Inexcusable delay is a delay caused by the contractor, such as
failure to properly schedule or supervise the work or to prosecute
the work diligently.

Generally speaking, an excusable delay

entitles a contractor to a contract time extension, but not to

additional money.
delay,

For a contractor to receive compensation for

contractor

excusable/compensable delay

must

establish

proof

of

an

a delay caused by the owner or the

owner's agent, such as those resulting from defective plans and

specifications.
Frequently in delay litigation a contractor tries to prove
excusable/compensable delay in the face of an owner-liquidated
damage assessment.
5

Bigelow, Inc. ASBCA No. 24376, 81-2 BCA CCH No. 15, 30000.

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In the context of construction claims, a

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by John Darling, Esq.
liquidated damages provision requires the contractor to pay the
owner

per

diem

amount

for

every

calendar

day

of

delay.

Liquidated damages can range from $250 to $25,000 a day depending

Such clauses are presumed valid.6

on the project.

In order to

invalidate the clause, the contractor must demonstrate ". . . that

the provision was unreasonable under the circumstances existing at
the time the contract was made."7

Contractors sometimes contend

that a liquidated damages clause cannot be enforced, because the

owner cannot establish actual damages.

Under this line of attack,

the contractor asserts that the clause is a penalty and therefore

invalid.

To date, no California case has addressed this issue.

Contractors also attack the validity of an owner's liquidated

damages claim time period by asserting that the owner's claimed
date of completion is not based on when the project was actually
finished, which should instead be tied to the date the owner had
"beneficial occupancy."8
Concurrent

delay

is

also

typically

involving delay and liquidated damages.

concurrent

delay:

"If

period

of

litigated

in

claims

One court defined true

delay

can

be

attributed

simultaneously to the actions of both the government and the

6

Civil Code 1671 & Public Contract Code 10226.

Id.

Civil Code 3086; Westinghouse Electric Corp. v. County of Los

Angeles (1982) 129 Cal.App.3d 771, 779; Peter Kiewitt Sons Co. v. Pasadena
City Junior College District (1963) 59 Cal.2d 241, 245-246.

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contractor, there are said to be concurrent delays, and the result
is an excusable but not compensable delay."

The older line of

California cases on concurrent delay held that if the owner bore

responsibility for any of the delay, the owner was prohibited from
assessing liquidated damages.10
doctrine of apportionment.

Recent courts have opted for the

In situations where the period of delay

is partly the fault of the owner and partly the fault of the
contractor, courts will permit the parties to apportion delay
according to fault.11
Assuming a contractor can establish excusable/compensable
delay, the contractor typically only recovers delay damages if the
delay falls on the critical path.12

One court clearly articulated

the reason for this rule of law.

The reason that the determination of the critical
path is crucial to the calculation of delay
damages is that only construction work on the
critical path had an impact upon the time in which
the project was completed.
If work on the
critical path was delayed, then the eventual
completion date of the project was delayed. Delay
9

Dawson Construction Co. GSBCA No. 3998, 75-2 BCA 11,563;.

10

Go Go v. Los Angeles Flood Control District (1941) 45 Cal. App.2d

334, Aetna Casualty & Surety Co. v. Board of Trustees (1963) 223 Cal. App.2d
337; General Insurance Co. v. Commerce Hyatt House (1970) 5 Cal. App.3d 460.
11

Nomellini Construction Co. v. State of California (1971) 19 Cal.

App.3d 240; Jasper Construction v. Foothill Junior College District (1979) 91
Cal. App.3d 1; and Pathan Construction Co. v. High-Way Electric Co. (1978) 65
Ill. App.3d 480; 382 N.E.2d 453.
12

Howard Contracting, Inc. v. G.A. McDonald Construction, Inc. (1998)

71 Cal. App.4th 38; Fortec Construction v. United States 8 Cl. Ct. 490 (1985);
Mega Construction Co. v. United States 29 Fed. Co. 396 (1993).

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involving work not on the critical path generally
had no impact on the eventual completion of the
project.13
What is the critical path?

Essentially, it is ". . . the

longest series of the work activities to the performance of a whole

project."14

The critical path method schedule breaks down the

activities on a given project into component parts and shows an

early

start/late

particular task.

start

and

early

finish/late

finish

for

any

"Float" is the total time an activity can be

delayed without delaying the entire project. If a particular

activity has no float time, that activity is on the critical path.
An activity which has float can become a critical path activity if
the preceding activities are delayed and the float is used.

In

delay litigation, owners and contractors each contend that they own
this float.

Contractors want to own the float as it gives them

greater scheduling flexibility and decreases the potential for a

liquidated damages assessment.
One or more methods of proving compensable critical path delay
may be employed by the expert.
preparing

an

as-planned

The "window analysis" involves

schedule

together

with

an

analysis

demonstrating the delays that occurred on the project and how those
delays created a new critical path.
13

The expert then assesses

Fortec Construction v. United States 8 Cl. Ct. 490 (1985).

14

Appeal of Montgomery-Ross-Fisher, Inc. PSBCA Nos. 1033, 1096, 84-2

BCA, (CCH) No. 7499 (1984).

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responsibility for each delay and opines as to whether it is
excusable or compensable.
Another method is the "collapsed schedule analysis." Under
this approach, the expert prepares an as-planned schedule and an
as-built schedule.

Finally, a collapsed schedule is prepared which

removes the owner-caused delay.

Some experts will not use a critical path schedule analysis to
demonstrate compensable delay.
chart " analysis.

Instead they will employ a "bar-

A bar-chart schedule is one that shows the

duration of particular activities, but does not necessarily show

the

relationship

among

predecessor

and

successor

activities.

Owners frequently contend that a contractor may only prove delay

damages through a critical path analysis, not through a bar-chart
analysis.

In

California,

courts

have

held

that

bar-chart

schedule may be used to demonstrate delay so long as the schedule

identifies

the

demonstrates

project's

". . . that

critical

the

delays

path

and

constitute

the

analysis

critical

path

delays."15
A contractor's delay damages typically consists of direct and
indirect expenses.
project

site

for

Direct expenses are those expended at the

supervision,

office

15

trailers,

fences,

Howard Contracting, Inc. v. G.A. McDonald Construction (1998) 71

Cal. App.4th 38.

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fax

"Construction Delay and Disruption Claims An Overview"

by John Darling, Esq.
machines, etc.
conditions.

Direct expenses are commonly referred to as general

Indirect expenses are costs expended to support job

site activities such as the contractor's office staff, office lease

payments,

project

management,

and

administrative

support.

Indirect expenses are commonly referred to as home office overhead

charges.
Part of a contractor's proof of delay damages typically
includes a per diem charge

for extended general conditions.

Once

the contractor has established a period of excusable/compensable

critical path delay, then the trier of fact will be asked to
multiply the number of days of delay by the per diem charge for the
contractor's extended general conditions.

This calculation is

designed to capture the contractor's delay damages for direct

costs.
To establish the contractor's claim for indirect damages, the
generally preferred method is the Eichleay home office overhead
calculation.16

This calculation is designed to demonstrate the

contractor's "unabsorbed" home office overhead.

Eichleay is based

on the premise that contractors pay for their fixed overhead

expenses

through

construction projects.

revenue

stream

generated

Eichleay Corp., 60-2 B.C.A. (CCH) 2,688 (ASBCA 1960)

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various

The home office overhead expenses help

support the contractor's direct job site expenses.

16

from

Page 10 of 21

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"Construction Delay and Disruption Claims An Overview"

by John Darling, Esq.
bids include an amount necessary to cover home office overhead.
a

project

is

delayed

and

the

contractor

does

not

If

receive

corresponding payments from the owner to cover its overhead during

the

delay

period,

the

contractor

will

nevertheless

have

to

contribute some amount of its home office overhead to support its

project

activities.

Under

this

scenario,

the

contractor

experiences unabsorbed home office overhead.

The Eichleay formula, and the various iterations of Eichleay,
are designed to calculate the daily home office overhead incurred
to support the project during the delay period.
given

to

the

trier

of

fact

together

excusable/compensable days of delay.

This daily rate is

with

the

number

of

If persuaded by the analysis,

the trier of fact then calculates the total extended home office
overhead claim to be awarded to the contractor.
For

demonstrate

contractor
that

(1)

to
a

recover

compensable

under
delay

Eichleay,
occurred;

it

must

(2)

the

contractor was on standby; and (3) the contractor was unable to

take on other work.17

California courts have permitted the recovery

of unabsorbed overhead, although no explicit reference to the

Eichleay formula has been made.18

According to the Allstate Boiler

17

West v. Allstate Boiler, Inc. (1998) 146 F.3d 1368, 1373; Interstate
General Government Contracts, Inc. v. West (Fed. Cir. 1993) 12 F.3d 1053,
1056.
18

Howard Contracting, Inc. v. G.A. McDonald Construction, (1998) 71

Cal. App.4th 38, 54.

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decision, "the proper Stand By test focuses on the delay or
suspension of contract performance for an uncertain duration,
during which a contractor is required to remain ready to perform."19
If the contractor is able to satisfy the Stand By test, then the
burden of proof shifts to the owner to show that the contractor was
unable to take on "other work."

The "other work" test has been

analyzed by many cases since the original Eichleay decision.

It

appears from a reading of these cases that in order to meet this

burden, the owner must demonstrate that the contractor took on
additional work for the purpose of seeking to specifically cover
the alleged unabsorbed overhead caused by the project delay.20

21

Legal Issues Concerning Disruption Claims

A disruption claim arises when an owner changes the method
and/or sequence of construction from that upon which the contractor
based its bid.

When the planned method of attacking the project is

disrupted, contractors incur increased labor costs because it takes

them

more

man-hours

contemplated.

to

complete

the

task

than

originally

When this occurs, contractors allege a breach of

either an express contract provision, which requires cooperative

19

20

West v. Allstate Boiler, Inc. (1998) 146 F.3d 1368, 1373.

Melka Marine, Inc. v. United States

21

187 F.3d 1370 (Fed. Cir. 1999).

The Federal Acquisition Regulations (FAR) in some instances applies

a certain percentage on change orders to cover a contractor's home office
overhead.

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efforts on the part of the owner, or a breach of the implied duty
to cooperate or to refrain from hindering the contractor.22
A nationally-recognized construction law treatise elaborates
on the implied duty to cooperate:
"Failure to cooperate can come in the form
of disapproval of an accepted method of
performance, untimely progress payments,
delay in approving changes or correcting
design specifications and drawings, failure
to disclose superior knowledge or provide
timely information, disruptive inspections,
pull coordination of other contractors, and
refusal to permit storage or access to the
site."23
To counter contractor disruption claims, owners often argue
that they had the right to change the schedule and, therefore, the
sequence of construction by virtue of the terms of the contract.
Owners reason that these express terms trump the implied duty to
cooperate, thereby rendering the legal basis for the contractor's
claim suspect.24
Owners

also

contend

that

the

contractor's

assumptions

regarding job site access and sequencing were unrealistic and

22

Howard Contracting, Inc. v. G.A. McDonald Construction Co. (1998) 71

Cal. App.4th 38, 50; Henseler v. City of Los Angeles (1954) 124 Cal. App.2d
71, 82-83; Shea v. City of Los Angeles (1935) 6 Cal. App.2d 534; McWilliams
v. Holton (1967) 248 Cal.App.2d 447, 451; Blake Construction Cov. C.J.
Coakley Co., Inc. (D.C. Ct. App. 1981) 431 A.2d 569; Fowler & Butts,
P.S.B.C.A. No. 254591-1 B.C.A. (CCH) 23,391 at 117,383 (1990).
23

Cushman & Butler Construction Change Order Claims (1994) John Wiley
& Sons, Inc. 7.11.
24

Carma Developers (Calif.), Inc. v. Marathon Development Calif.,

(1992) 2 Cal.4th 342, 373.

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therefore not the owner's fault.

When confronted with these owner

defenses, contractors must prove a cause-and-effect relationship

between their labor cost overrun or disruption claim and the
owner's conduct.

25

All too frequently disruption claims cannot be

established with precise cause-and-effect proof.

Courts have

recognized that experts are needed to demonstrate a cause-andeffect relationship by some accepted method of proving causation
and quantification.
"Quantification of loss of efficiency or
impact claims is a particularly vexing and
complex problem. We have recognized that
maintaining cost records, identifying and
separating inefficiency costs to be both
impractical and essentially impossible."26
Another court addressed this quantification issue in a similar
fashion,
"[w]e, as most other courts and board,
recognize that quantifying the loss of labor
productivity is difficult and that the
determination of the dollar amount of damages
for labor inefficiency with exactitude is
essentially impossible. In recognizing this
fact, we expect that the measurement of the
amount of inefficiency would usually be
supported by expert testimony."27
To support a disruption damage calculation, contractors
typically site to Civil Code

3300, the measure of breach of

25
Lewis Management & Service Co., ASBCA No. 24,389,85-2 B.C.A. (CCH)
18, 042 at 90,565 (1985).
26

The Clark Construction Group, Inc., VABCA No. 5674, 00-1 BCA 30,

27

P.J. Dick, Inc. VABCA No. 5597, et al., 01-2 BCA 31,647.

870.

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contract damages, and case law holding for the proposition that
once damage has been established with "reasonable certainty"
recovery will be allowed, even though the damages cannot be
stated with mathematical precision.28
Calculating Disruptive Damages
There are various methods experts use to quantify and show
causation of labor inefficiency claims.

These methods include the

Measured Mile approach, use of Industry Standards, Total Costs,

Modified Total Costs and the Jury Verdict method.
The

"Measured

Mile"

approach

analyzes

the

contractor's

productivity during a portion of the project where the contractor's

work was not impeded by the owner.
then

compared

disruption.

to

the

This measure of productivity is

productivity

experienced

during

One court explained the Measured Mile this way:

A Measured Mile (or good versus bad) analysis

compares
the
actual
labor
costs
or
labor
productivity performing work during a time period
in which the work was not impacted by the actions
causing labor inefficiency to the actual labor
costs or actual productivity rate for performing
work during a period that was not so impacted.
Such an analysis generally presumes that the labor
costs or productivity rates being compared are for
the same work, and ideally, results in a standard.
The
actual,
unimpacted
productivity
of
a
contractor's labor against which the effect of the

28

Allen v. Gardner (1954) 126 Cal. App.2d 335, 340-342; State of

California v. Guy F. Atkinson (1986) 186 Cal.3d 25.

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the

"Construction Delay and Disruption Claims An Overview"

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government-caused change to working conditions can
be measured.29
The impacted productivity rate is quantified in lost manhours,
which are multiplied by an hourly rate to find the loss of labor
productivity, or the disruption claim amount.

The Measured Mile

has been accepted by many courts and is generally the favored

method of quantifying labor productivity claims.
Owners attack a Measured Mile calculation by claiming that
the baseline (unimpacted) productivity measure is faulty.

baseline productivity measure can be faulty if the "good versus

bad" comparison is not an "apples to apples" comparison.

The

Measured Mile in its purest application measures productivity

for the same type of work performed under the same type of
physical conditions on the same project.
A less favored approach is the "Industry Study" method of
quantifying labor productivity.

Trade groups for various

contractors have published productivity tables that show how

various jobsite conditions can affect labor productivity.
Particular conditions are scored in terms of their effect on
productivity.

One of the better recognized industry

productivity standards is the Mechanical Contractors'

Association of America's Productivity Factor Analysis.

contractor's expert can use the MCAA factors and opine as to how
29

P.J. Dick, Inc. VABCA No. 5597, et al., 01-2 BCA 31,647

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much the contractor's productivity was affected by the owner's
disruption.

These measurements are then quantified to show the

loss of labor efficiency and the disruption claim amount.

Owners attack this methodology as being inherently biased,
since they are authored by trade groups made up of a body of
contractors.

Owners also contend that these guidelines are

factually distinguishable to the conditions experienced on their

job site.

Nonetheless, these industry studies have been used

successfully as a way to measure productivity.30

The "Total Cost" method is based on the premise that the
resulting project is a cardinal change from what was originally
contracted.

Once a cardinal change, or abandonment, has been

established, the contractor is freed from the terms of the contract

and is allowed to recover the reasonable value of the labor and
materials, plus reasonable markups for overhead and profit, less
what it has previously been paid.

In effect, the Total Cost method

turns a fixed-price contract into a time-and-materials contract.31

For this reason numerous courts have disfavored this method.32

contractor using the Total Cost method must satisfy a four-part

test

that
30

involves

(1)

demonstrating

the

impracticability

of

Fire Security Systems, Inc. 91-2 BCA 23-743.

31

C. Norman Peterson Co. v. Container Corp. of America (1985) 172 Cal.

App.3d 628.
32

Huber Hunt & Nichols, Inc. v. Moore (1977) 67 Cal. App.3d 278,
Amelco Electric v. The City of Thousand Oaks, 27 Cal.4th 228 (2002).

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proving its actual losses directly; (2) proof that its bid was
reasonable; (3) proving that its actual costs were reasonable; and
(4) proving that it was not responsible for its added costs.33

On a

public works project, the judge first determines if the contractor

submitted prima facie evidence showing that the four-part test has
been established before the jury can be instructed on a Total Cost
or Modified Total Cost theory of recovery.34
The "Modified Total Cost" method modifies the Total Cost
method by subtracting from the total costs any costs incurred by
the contractor due to its own inefficiencies.35

The main criticism

of the Total Cost and Modified Total Cost methods is that they can
be used by contractors to hide their self-imposed losses due to bid
errors or defective project management.

Owners frequently seek to

bar these methods on those grounds.

Owners also contend that the contractor's cost records are
sufficiently detailed so that the contractor could have during the
course of the project tracked its costs in such a way to show
actual

causation

between

what

contractor's loss of production.

the

owner's

actions

and

the

Owners argue that to the extent

the contractor failed to adjust its accounting system to track job

33
Amelco Electric v. The City of Thousand Oaks, 27 Cal.4th 228 (2002),
Id at 243.
34

Id. at 243, 244.

35

Servidone v. United States (1990) 19 Cl. Ct. 346, 348, aff'd (Fed.
Cir. 1990) 931 F.2d 860.

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"Construction Delay and Disruption Claims An Overview"

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costs, the contractor should be barred from using the Total Cost
method.

Owners are particularly uncomfortable with allowing Total

Cost claims to be submitted to a jury.

easy for a jury to understand.

A Total Cost calculation is

Owners are loathe to allow a Total

Cost claim to be submitted to a jury without a fight, as a jury

after

long

and

complex

construction

case

can,

in

short

deliberation, arrive at a substantial Total Cost verdict.

Another method of quantifying loss of productivity claims is
the "Jury Verdict" method.

To apply this method, there must be

sufficient evidence in the record showing (1) a clear proof of

injury, (2) an indication that there is a no more reliable method
of computing damages and (3) evidence of sufficient weight for the
court

or

the

trier

of

approximation of damages.36
resort.

fact

to

make

fair

and

reasonable

Some characterize this method as a last

Frequently, courts use evidence submitted in support of

different quantification methods, such as the Total Cost method, to

derive a jury verdict calculation.37

Owners contend that the Jury

Verdict method cannot be used because the contractor/plaintiff

failed to meet its burden of demonstrating damages with reasonable
certainty.

Owners also contend that the Jury Verdict method

36

State Ex Rel. Dept. of Transportation v. Guy F. Atkinson Co. (1986)

187 Cal. App.3d 25, 32-35; WRB Corp. v. United States (168) 138 Ct. Cl. 409,
425.
37

Tutor

Saliba

Perini PSBCA No. 12, 87-2 BCA (CCH) 19,775

(1987).

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"Construction Delay and Disruption Claims An Overview"

by John Darling, Esq.
represents nothing more than allowing the trier of fact to "guess"
at what the contractor's damages are, which, when used, frees the
contractor from its normal and customary burden of showing breach,
causation and damage.
Avoiding Delay and Disruption Claims
Several elements included in contract documents can reduce the
risk

of

delay

and

disruption

losses:

"no

damages

for

delay"

clauses, "claims notice" provisions, scheduling provisions, claim

waivers, "limitation of liability" clauses, and "termination for
convenience" clauses, to name just a few.

Since all of these

provisions and exceptions will generally be weighted on one side or

the

other,

all

bear

serious

consideration

before

use,

with

particular attention enforceability under California law.

While the battlefield of construction claims are fraught
with land mines, and while litigating delay and disruption
claims can be disastrous to all parties, there is no better
source of prevention than properly guiding your owner or
contractor client through these issues in the contract
documents.

Proper planning from the very

inception of a

project, combined with open lines of communication, can avert a

battle, or, at the very least, minimize the casualties.

WORD COUNT WITH ENDNOTES:

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4556

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