By Bruce Jervis
Construction contracting is replete with deadlines for asserting one’s rights. Some are imposed by contract, others by statute. Failure to adhere to a deadline will usually result in a waiver of rights. Yet, parties regularly miss deadlines, much to their dismay.
Filing deadlines are usually thought of in the context of contractor claims; for instance, a contractor’s claim for additional compensation from the project owner, a subcontractor’s claim against a contractor’s payment bond, or the assertion of a mechanic’s lien on the project property. But, filing deadlines can also apply to other parties, as a Louisiana project owner recently learned.
The owner had a 12-month statutory period to assert a claim for damage to existing improvements caused by the contractor’s construction operations. The owner was aware of the damage, but the cause of the problem was disputed by the contractor. The owner waited until after the deadline to file suit. The claim was barred. Although the contractor denied responsibility, the contractor never concealed or misrepresented the nature of the damage.
The failure to adhere to a deadline for asserting one’s rights is usually inexplicable. The consequences are severe. What practices and procedures do you have in place to avoid the inadvertent waiver of rights? Your comments are welcomed.