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Recent Posts

DON’T PUT YOURSELF IN THE POSITION OF DEFENDING AGAINST AN ACCORD AND SATISFACTION DEFENSE

Posted on 10 September, 2022
The doctrine of accord and satisfaction lives and breathes in disputes including construction disputes.  Unfortunately, a contractor, in the case discussed below, found out the hard way after it cashed checks that were accompanied with a letter that clearly indicated the checks were final payment. ...

QUICK NOTE: UNJUST ENRICHMENT CLAIM REQUIRES PROOF OF DIRECT BENEFIT

Posted on 5 September, 2022
An unjust enrichment claim is an equitable claim when there is no direct contract between the parties governing the merits of the claim.  It is not uncommon for these claims to be asserted in a construction dispute. A plaintiff suing a defendant for unjust enrichment must prove that they conferred...

THE CREDIBILITY OF YOUR EXPERT (INCLUDING YOUR DELAY EXPERT) MATTERS IN CONSTRUCTION DISPUTES

Posted on 3 September, 2022
Here is a quote from a judge in an order after the bench trial of a complex construction dispute between a prime contractor and subcontractor on a federal project: The evidence received in this case demonstrates the dynamic nature of complicated construction projects. At every step, the...

IS THE EVENT YOU ARE CLAIMING AS UNFORESEEABLE DELAY REALLY UNFORESEEABLE?

Posted on 27 August, 2022
Is the item or event you are claiming as an unforeseeable, excusable delay really unforeseeable?  This is not a trick question. Just because your construction contract identifies items or events that constitute unforeseeable, excusable delay does not mean those items can be used as a blanket excuse...

IS THE REMOVAL AND REPLACEMENT OF NONCONFORMING WORK ECONOMICALLY WASTEFUL?

Posted on 21 August, 2022
There are times a contractor installs the wrong material or system contrary to the plans and specifications.  A nonconformity. The owner wants the already-installed material or system to be replaced in conformity with the plans and specifications.  However, what was installed is functionally equivalent to what the plans and specifications...