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A summary of damages for construction delay claims

On Behalf of | Jan 28, 2022 | Construction Law

Construction projects are complicated undertakings. Many things can go wrong even as the project moves toward completion. Generally, the party who is responsible for any misstep must bear its cost. In the world of construction law, these costs are called “damages.” One of the most complex topics in construction law is damage claims resulting from delays in the project’s schedule.

Why delay claims can be costly

The cost of erecting even a modest structure can involve expensive materials, complex machinery, expert laborers, and overhead costs. Thus, even a small delay can result in significant additional costs. Most projects run according to a construction schedule that is the product of a complex negotiation between the owner and the general contractor. A deviation from the construction schedule can mean significant additional costs that must be paid by one or more parties to the contract.

Excusable vs. inexcusable delays

Excusable delays are generally caused by unexpected outside events outside the terms of the construction contract, such as calamitous weather on the level of a significant earthquake or hurricane. These events cannot be blamed on a single party, and no one is expected to pay the costs of the delay caused by the event. An inexcusable delay is a halt in the progress of the project that is generally believed to be the unavoidable or reasonably foreseeable error of one of the parties to the construction contact. In the case of an inexcusable delay, the party responsible for the delay may be held liable to the non-responsible parties for the costs of the delay, as measured by added labor and material costs.

Excusable delays

If the delay cannot be attributed to a single party or event, no party will be held liable for delay damages. Such delays are deemed to be “excusable delays.” Such a delay may be attributable to an error by the owner or architect or to the engineer or general contractor. As the law of delay damages develops, the courts appear to be more willing to assign damages to the party who is responsible for the delay and the consequent damages. In a similar vein, the parties to a construction contract are allowed latitude by the courts to assign liability to the parties by negotiation of the contract’s terms.

The assessment of damages for delay claims can be a very complex legal subject. Anyone who is or may be involved in such a dispute may find significant assistance from an experienced construction attorney regarding the calculation and an award of damages.