Article Date: 10/15/2012

Burial Sites Becoming a Growing Impetus for DSC Claims

By Steve Rizer


Dead men tell no tales, but apparently they represent a growing impetus for differing-site-condition (DSC) claims in construction.


DSC claims involving archeological and protected burial sites have become “somewhat more popular,” Marilyn Klinger, who heads up the Construction Practices Group for Sedgwick LLP’s Los Angeles office, told a group of construction professionals attending a webinar that WPL Publishing held earlier this month. Environmental and archeological-type regulations developed in recent years have fueled this trend, she said.


Klinger noted that various state statutes require construction stoppage if human remains, burial artifacts, or items of some other archeological significance are found. Among such statutes are California Health and Safety Code Section 7050.5 and California Public Resources Code Section 5097.98.


“Interestingly, I was chatting with a construction attorney from New Mexico, and he said there came a point, at least for the road builders, [where] they were bumping into Native American burial sites so frequently that they changed the rule,” Klinger said. “They do certainly have to give notice and allow the Native Americans to come and evaluate and archeologists to evaluate, but they don’t have to stop construction, so that’s been an interesting turn of events.”


Klinger reported this information during a WPL webinar called “Differing Site Conditions: The Big Game of Shifting Risk.” Also addressing attendees was Jonathan Dunn, the Construction Practices group lead partner in Sedgwick’s Orange County, Calif., office. They delivered their presentations to a target audience of engineers, architects, design professionals, public and private owners, contractors, subcontractors, manufacturers, suppliers, and construction law attorneys.


“We’re … hoping, as part of this [webinar], that you’ll be more prepared to identify those situations where [DSC] claims might arise and understand what the contractor’s rights might be in those situations, and the owners, if you’re an owner, as well as just generally address the types of scenarios where claims for [DSCs] arise,” Dunn told webinar attendees.


In addition to DSC issues relating to archeological and protected burial sites, Klinger and Dunn discussed four other general scenarios in which DSC claims may arise. Other presentation topics included the history of risk for DSCs, the types of DSCs, contractual provisions dealing with DSCs, reasonable site inspections and investigations, and examples of DSC claims.


A recording of the webinar with slides can be purchased via the following link:



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