Volume 6 - Number 18 | May 5, 2008 - Construction Claims Advisor

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You are here: Home » Volume 6 - Number 18 | May 5, 2008

Volume 6 - Number 18 | May 5, 2008

EDITOR'S NOTES | Issue 6-18: The verb “represent” has 11 definitions in Merriam Webster’s online dictionary. This week’s set of cases covers three of those definitions:

1. “To serve as a specimen, example, or instance of”—Absolute representations cited on an itemized data sheet were preempted by a contract’s disclaimer that the amounts were estimates. A disgruntled contractor, hoping to make a profit on the timber it cleared and kept, got more work and less lumber than it bargained for because it relied on the data sheet, which overstated the amount of timber on the property.

2. “To describe as having a specified character or quality”—From a legal perspective, representations made in contract documents on a soil remediation project were more persuasive than soil testing results conducted in a non-representative area of the stockpile. As such, statements made in the contract documents prevented the contractor from winning its differing site condition claim.

3. “To take the place of in some respect; to act in the place of or for usually by legal right”—A surety was permitted to take the place of the contractor it bonded in pursuing compensation for a subcontractor payout triggered with an owner’s refusal to pay for approved work additions on a renovation project.

MISSISSIPPI HIGH COURT ENFORCES QUANTITY ESTIMATE DISCLAIMER: A state high court rules that a contract disclaimer outweighs a statement of absolute representations in a quantity estimate dispute.

SOIL TEST LOGS WERE CONTRADICTED BY OTHER AFFIRMATIVE REPRESENTATIONS: The proof is in the dirt and the contract, rules a federal appeals court in a differing site condition claim for a soil remediation project. The contractor should have relied on contract representations, not optimistic test results performed of a small area of contaminated soil.

ANTI-ASSIGNMENT LANGUAGE DID NOT IMPAIR SURETY’S RIGHTS AGAINST OWNER: A contract’s anti-assignment clause does not prevent a surety from bringing a payment claim against a public owner on a community center renovation project.