There were also hundreds of changes by Marriott to the drawings
and project schedule that caused Dasta significant additional labor
costs and lost productivity. At the trial, a jury awarded Dasta $2.2
million in delay and lost productivity damages against Marriott.
However, the $2.2 million award was taken away by the trial
court, and that decision was upheld on appeal. Even though Dasta
had been delayed, because Dasta had failed to comply with the
notice of claim requirement in its contract with Marriott, the court
ruled that Marriott’s failure to grant a time extension to Dasta
for the delay could not be considered legally wrongful. Moreover,
despite testimony at trial that Dasta’s owners had conversations
with Marriott about the delays, the court ruled that “none of
Dasta’s verbal communications to Marriott was sufficient” to comply
with the contract’s written notice requirement.
While this ruling may seem harsh, it underscores the critical
importance of timely compliance with contractual notice provisions.
Although at times, courts have excused strict compliance
with notice requirements under certain circumstances, courts
have just as often denied claims simply for failure to meet notice
requirements. Clearly, the best way to avoid this potential fate is
to make sure you know, understand and comply with contractual
notice provisions.
3. Balancing notice and maintaining good
project relations
Of course, there is the practical concern that being overly aggressive
in sending notice on a construction project can potentially
lead to frayed contractual relations between the parties and difficulties
on the project.
CONSTRUCTION LAW
One way to try to avoid this is to carefully consider the tone
and content of the written notice. For example, the tone of a
notice does not need to be aggressive or claims-focused. Instead,
a notice should convey the necessary information, but the tone
and focus of the initial notice can be on a desire to work together
to resolve the issue as quickly and as inexpensively as possible.
That way the claim is preserved, while the immediate focus is,
as it should be, on resolving and mitigating the issue for the success
of the project. This approach may help maintain good project
relations while also avoiding a potential waiver rights and
claims that could occur if no notice was given.
4. Documentation can make or break claims
and defenses
Notice is just the first step necessary to preserve the claim or
defense. But, notice alone is not sufficient, as documentation
of a claim or defense will be necessary to ultimately successfully
prove it in court. Documentation can take many forms, but
things documented in writing, such as in letters, emails, meeting
minutes or daily reports, or in photos or videos, will always be
more effective than just individual recollections or oral statements,
particularly where the court or arbitration proceedings
may be months or even years after the events on the project.
Without appropriate documentation, an otherwise valid claim
or defense may simply not be provable in court or arbitration.
For parties making claims, this means documenting not only
the events giving rise to the claim, but the communications
regarding the claim, the delays or other effects of the events giving
rise to the claim and the damages incurred due to the events
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