07/15/2022

Editor's Notes

The need for contemporaneous jobsite records in support of a claim is well established. This documentation, maintained regularly in the course of business by individuals with first-hand knowledge, is the most persuasive evidence of what occurred during construction. But what should be concluded from documentation, known to have existed, that disappears without explanation and is not available to the fact finders?

 

A public works contractor in Seattle presented this problem. The contractor’s on-site deputy project manager maintained a daily journal recording events and communication in the field. The journal entries for the time period relevant to a dispute disappeared with no explanation. Was a trial court correct in instructing the jury that they should infer the missing journal entries contained information detrimental to the contractor’s case?

 

The second case in this issue involved a contractor’s allegation of defective government specifications. The government responded that the contractor failed to provide the equipment and personnel needed for the situation. Should an experienced contractor have been expected to anticipate the challenge posed and devise the means and methods for coping with it?

 

The third case addressed the right of an unpaid subcontractor to recover from a project owner for unjust enrichment. Must the sub first prove that it had no possibility of recovering payment from the prime contractor with whom it had contracted?

 

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