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Volume 6 - Number 44 | November 10, 2008

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  EDITOR'S NOTES | Issue 6-44
Edward Bulwer-Lytton, a widely quoted though little-known British playwright (at least by today’s standards), is credited with penning the metonymic adage, “The pen is mightier than the sword.” Indeed, depending on the person who possesses it, the proverbial pen can wield an impressive power. While battles will be forgotten, the written word can persevere long past its original intent.

The written word plays a powerful role in every construction contract. It defines the scope, expectations and limitations of a project. On one particular school project, the written word proved detrimental to the construction consulting firm. The construction administrator, hired to perform “paper-type stuff,” kept scrupulous notes of his project involvement, including notes on technical discussions and decisions. Because his documented involvement clearly encompassed more than just paper-pushing, the company was included in a liability lawsuit for defective construction.

Statutory and contractual limitations round out the topics in this week’s series of case summaries. Once a subcontractor’s work was accepted and paid for, the statute of limitations clock began to run. A claim filed against the sub’s performance bond five years after the sub finished the project was dismissed, even though the overall project did not end until several years later. And, because a contract limited the compensation amount for owner-caused delays, a subcontractor could not pursue delay costs above that amount, said a New York appeals court.

If you have not yet registered for WPL Publishing’s webinar series on construction scheduling, there’s still time. The first session, Project Scheduling in the 21st Century, is this Wednesday at 1 p.m. (EDT). Visit www.projectcontrols.com for more information.
  ON-SITE ACTIVITIES COULD EXPOSE CONSULTANT TO LIABILITY FOR DEFICIENT CONSTRUCTION WORK
Technical wording on invoices submitted by a construction consulting firm exposes the firm to liability for faulty construction even though its contracted role on the project was managerial.
  LIMITATIONS PERIOD STARTED UPON ACCEPTANCE OF SUB'S WORK
The clock on a statute of limitations begins to run when the subcontractor's work is accepted and compensated, not at the completion of the overall project, says a state appeals court.
  LIMITATION OF DELAY DAMAGES ENFORCED
A cap on monies paid on a delay claim stands up in a New York appellate court. Because the subcontract strictly limited the payable amount for contemplated delays, the subcontractor could not seek an additional payout.