Biemann and Rowell Co. v. The Donohoe Companies, Inc., 2000 NCBC 8 (N.C. Super. Ct. )(Tennille), aff'd, 147 N.C. App. 239, 556 S.E.2d 1 (2001)

Defendant, a general contractor, served as project expediter on a major construction project. Plaintiff, another co-prime contractor on the job, claimed that defendant was responsible for damages it had incurred because the project was delayed. Following a trial, the Court found the plaintiff had not proven the essential elements of a delay claim, which are that (1) the delay was unreasonable, (2) the delay was proximately caused by the defendant's actions, and (3) the delay had caused the plaintiffs injury.

There was no causal link between defendant's duty as expediter and the delay. The Court determined that defendant's work had certainly contributed to the delay, but the Court found that the Architect on the project had not assigned any direct liability for delay to the defendant, and that the Architect's decision on this matter controlled. The Court also ruled that plaintiff had failed to link its allegation of delay to the critical path of the construction. The critical path item which defendant had delayed appeared on the critcal path long after the project began experiencing delays.

The Court also found that plaintiff, which had relied on a modified total cost method, had failed to prove damages. The elements of such a claim for damages are the "(1) impracticability of proving actual losses directly; (2) reasonableness of bid; (3) reasonableness of actual costs; and (4) lack of responsibility for additional costs." Plaintiff had not shown that proving actual losses was impracticable, and it had not shown that its bid was reasonable. Further, plaintiff had failed to adequately allocate responsibility for its extra costs. Since it, too, had contributed to the delay, there had to be proof of clear apportionment of the delay and expense attributable to each party. Plaintiff had failed to show that.

Another ground for denial of plaintiff's claim was that it had failed to give written notice of its claims. The weekly and monthly project meetings, where plaintiff claimed it had raised the issue of defendant's delay, were insufficient notice. The Court noted case law that permitted the requirement of written notice to be waived, but it held that "the multiple prime contractor setting poses a unique situation which necessitates a strict notice rule." Written notice would have permitted the Architect from resolving delay issues, and would have allowed investigation of the claims while evidence was available and the memories of witnesses were fresh.

Full Opinion

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