It is well established that damages for breach of contract include consequential damages that were reasonably foreseeable at the time of contract formation. In a construction context, should this include delay to a project separate from the subject of the contract and not being performed at the job site?
The West Virginia Supreme Court addressed this issue. A project for construction of a processing facility was dependent on a separate but nearby contract for construction of a retaining wall. Should the wall constructor be held responsible for lost profit delay damages at the processing plant? It came down to foreseeability.
The second case in this issue involved the substitution of an expert witness after the contractor’s original expert died unexpectedly. Depositions had concluded and discovery had closed. The project owner cried foul when the substitute expert used a different method to measure lost labor productivity and significantly increased the amount of the contractor’s claim.
