Читать книгу Fundamentals of Construction Claims - William J. McConnell - Страница 43

Construction contracts often prescribe both pre-claim requirements and formal claim notice requirements. In addition, most contracts require that notice be issued in writing and transmitted via an accepted method, such as certified mail or registered mail, archaic as that may seem. Contractor pre-claim notice requirements allow the respondent the opportunity to render a decision on the issue before it is elevated to a formal “claim” status. Formal claim notice generally comes after the respondent has rejected all or a portion of claimant's change request.

It is common for claimants to ignore or otherwise fail to adhere to pre-claim notice requirements and/or formal claim notice requirements. Because lack of notice defenses can cause draconian results for claimants, state and federal courts have ample case law on this subject. States vary on their treatment of respondent's “failure to provide proper notice” defense. A minority of states interpret notice provisions strictly and often time bar delinquent claims, regardless of merit. Most states and federal courts take a more liberal “fairness” approach and often accept claimant defenses that can demonstrate that the respondent:

1 had constructive notice;

2 was not prejudiced due to the lack of notice; or

3 waived notice requirements based on prior conduct.

Claimants that fail to adhere to strict notice provisions and whose claims are rejected by respondents based on a lack of notice should contact a qualified construction attorney to discuss available defenses.

Constructive notice means that the respondent knew or should have known about the claim event. This may include verbal notice, discussions at a meeting(s), or superior knowledge. Second, claimants can assert a lack of prejudice defense if the respondent was not prejudiced by lack of timely notice. In other words, the respondent would not have acted differently even if the claimant had issued proper notice, e.g., the claimed work had to get done for the project to move forward and there was no alternative. Third, a waiver of notice defense may occur when the respondent did not previously enforce strict notice requirements as a condition precedent for the negotiation of claims.