Category Archives: Claims

April 11, 2017

The Dos and Don’ts of Drug Testing in Utah

By Garrett Walker

Contractors frequently encounter contract provisions requiring that they test their employees on a particular project for the presence of drugs and alcohol.  At times these provisions also purport to require disclosure to the other party of test results or other confidential information. By attempting to comply with these contract provisions, some contractors unintentionally expose themselves to claims by their prospective and current employees.  Read more >>

March 14, 2017

Project Documentation Can Make or Break Your Claim

By: Kevin Bridston

In my experience as a trial lawyer specializing in construction claims, I see a consistent pattern with project documentation: weak project documentation impairs the claimant’s ability to resolve the claim, whether by settlement, arbitration, or trial. The weaknesses generally fall into three categories: (1) failure to follow contractual requirements for notice; (2) failure to completely document daily events, impacts and costs on the project; and (3) failure to raise critical issues as soon as practicable after they are known.  Each of these weaknesses can and should be addressed on the project to improve the likelihood of a favorable and timely resolution of claims.

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November 12, 2015

When The Pre-Bid Information Turns Out To Be Wrong

By Tim Gordon

When conditions are encountered on a construction project that are contrary to the information provided to bidders, the parties’ contract should provide a roadmap for how the parties ought to proceed. When the parties’ contract is silent on the issue, the price of contracting increases, uncertainty arises, and the likelihood of disputes increases.

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January 12, 2009

Loss-of-Bonding-Capacity Claims Are Back in Colorado

By Tim Gordon

Denny Construction v. Denver (Colo. 2009)

Reversing a Court of Appeals opinion, the Colorado Supreme Court holds that impaired bonding capacity claims are not speculative as a matter of law.  Instead, like all claims for lost profits, they must be established with reasonable certainty.  Far from finding such a claim speculative as a matter of law as the Court of Appeals did, the Colorado Supreme Court lends support for such a claim:

“At bottom, then, a reduction in bonding capacity indicates a reduction in responsibility, which, in turn, will impair a contractor’s ability to obtain public works contracts. This is not speculation; on the contrary, it is the intended function of the bonding system.”

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June 26, 2008

Subcontractor not required to perform its paving work at midnight using teaspoons

By Tim Gordon

New Design Construction Company, Inc. v. Hamon Contractors, Inc. (Colo. App. 2008)

The Court of Appeals holds that the duty of good faith and fair dealing applies to a prime contractor’s right to schedule and sequence the work.  Additionally, the Court holds that a subcontractor not suing CDOT directly is not required to exhaust the CDOT administrative remedies prior to maintaining a suit against the prime contractor.  Finally, the Court addresses when penalty interest under Colorado’s prompt pay act applies and begins accruing.

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February 7, 2008

Court Of Appeals Gives Lengthy Analysis Of Changed-Conditions Claims

By Tim Gordon

URS Group, Inc. v. Tetra Tech FW, Inc. (Colo. App. 2008)

The Colorado Court of Appeals addresses in detail the elements of, and defenses against, a Type-I differing site conditions claim.

URS was the winning remediation subcontractor for a U.S. Army cleanup project managed by Tetra Tech FW, Inc. (TTFW).  After beginning demolition, URS encountered problems removing the foundations, and claimed that the conditions encountered were not as represented in the request for proposal.  So URS submitted a contract change notification, seeking $9,166.925 in additional costs.  TTFW rejected the claim, and URS sued.

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November 26, 2007

Lost Bonding-Capacity Claims Are Too Speculative (REVERSED)

By Tim Gordon

Denny Construction v. Denver (Colo. App. 2007)

The Colorado Court of Appeals held that, as a matter of law, lost bonding-capacity claims are too speculative.

UPDATE: On 11/26/2007, the Colorado Supreme Court grated cert. on the following issue: "Whether Colorado law prohibits lost profits arising out of the loss of bonding capacity as a matter of law." (07SC236)

UPDATE:  On 1/12/2009, the Colorado Supreme Court reversed the Court of Appeals, holding that impaired bonding capacity claims are not speculative as a matter of
law.  Instead, like all claims for lost profits, they must be
established with reasonable certainty.  See here.

November 1, 2007

Quantum Meruit Claim Allowed For What Is Typically A Change Order Issue

By Tim Gordon

Specialized Grading v. Goodland (Colo. App. 2007)

The Court of Appeals holds that a subcontractor can maintain a quantum meruit claim against the general contractor for alleged extras caused by the general’s failure to dewater, despite the fact that the parties have a written contract. The general rule is that a quasi-contract claim cannot lie where the parties have an express contract. But this rule does not apply if the conduct complained of is subsequent to, and not covered by, the express terms of the contract.

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February 22, 2007

Lost Bonding-Capacity Claims Are Too Speculative (on cert.)

By Tim Gordon

Denny Construction v. Denver (Colo. App. 2007)

The Colorado Court of Appeals held that, as a matter of law, lost bonding-capacity claims are too speculative. I’ve highlighted the relevant text.

The Court also addressed various provisions in a typical contract that give the owner discretion (like granting extensions), and how exercising that discretion can result in a claim for breach of the duty of good faith and fair dealing.

Read slip opinion