What are Some Effective Defenses to Delay Claims?

As I was watching the Super Bowl last night, it occurred to me that defense matters. Just ask Peyton Manning.

So, if you are a lawyer representing an owner or a general contractor who has been sued for a delay claim, then there are some ‘low-hanging fruit’ easy defenses that might apply to your case. A thorough Virginia construction lawyer should always check to see whether any of the following applies to their case:

1. Lack of Proper Notice. The contractor or subcontractor failed to give timely notice of the delay claim as required by the contract or Virginia law. Although a lack of notice is not always fatal to a claim, an owner or general contractor can often use a lack of notice defense to defend against a delay claim.
2. Proving Causation. The contractor or subcontractor cannot separate the delay impact caused by owner or general contractor from various other factors that may have caused the delay. On large projects, it can be very difficult to parse out who is responsible for what amount of a delay.
3. Delay was not on the Critical Path. The contractor or subcontractor cannot show that the delay was on their critical path. When defending a delay claim, it is important to carefully analyze the schedule’s critical path to assess whether or not the delay at issue really impacted the completion date for the whole project.
4. No Damages for Delay Clause. If the contractor’s or subcontractor’s contract included a provision stating that there will be no damages for a delay (or limited damages for a delay), then: (1) you have another solid defense to oppose a delay claim; and (2) either the contractor/subcontractor or you, as its lawyer, was very wise to include that provision. Just like the ‘Lack of Proper Notice’ defense above — this is a defense based on a contractual limitation.

Even if you use these defenses successfully, we still recommend refraining from making any ‘Richard Sherman outbursts’ in open court.