In Florida and elsewhere, construction projects can be prone to various risks and uncertainties. The incompetence of either party as well as outside factors such as weather, zoning permissions and construction industry staffing constraints can lead to delays. When one party alleges that another party is responsible for causing a delay, construction delay claims can arise, with at least one party seeking damages for losses incurred due to the delay.

Types of Damages

Several types of damages may be recoverable in construction delay claims, including direct damages, consequential damages, and liquidated damages. Direct damages refer to the actual costs incurred due to the delay, such as additional labor, equipment, and materials. Consequential damages pertain to indirect costs stemming from the delay, such as lost profits, reduced productivity, and additional financing expenses. Liquidated damages are predetermined damages specified in the contract and payable in the event of a delay. Claimants must thoroughly assess the damages suffered as a consequence of the delay and ensure they can provide supporting evidence for their claim.

However, to successfully recover damages in such claims, the party making the claim, or claimant, must present evidence and establish the veracity of their claim. Thus, the burden of proof in any legal process related to construction delay claims fall on the claimant.

Burden of Proof

Because the burden of proof lies with the claimant, the claimant must demonstrate that the other party’s breach of contract or negligence caused the delay. Furthermore, the claimant must prove that the delay resulted in financial damages whether those damages are additional costs, lost revenue or missed business opportunities.

To fulfill the burden of proof, the claimant must provide compelling evidence that unequivocally attributes the delay to the other party. This evidence typically includes project schedules, correspondence, change orders, witness testimonies and expert reports. The evidence must establish that the actions or omissions of the other party directly caused the delay. Outside factors such as unforeseeable events or circumstances beyond the control of either party weaken the claimant’s argument.

Existing Contractual Agreements

As in other business matters, the terms of the governing construction contract play a pivotal role in determining the parties’ responsibilities in case of a delay. The contract may contain provisions allocating risk and liability for delays, such as those related to scope changes, change orders and delays caused by third parties. Therefore, the claimant must thoroughly review the contract to ensure compliance with all contractual requirements before pursuing a delay claim. Additionally, the contract may bind the parties alternative dispute resolution mechanisms, such as arbitration or mediation and determine the applicable venue and law.

“To fulfill the burden of proof, the claimant must provide compelling evidence that unequivocally attributes the delay to the other party.”

The Effect of Concurrent Delays

Multiple factors can contribute to a delay. These factors can be any of the aforementioned outside factors that may not have been caused by any of the parties. Factors causing delays may also include actions or failures on the part of the claimant. In such cases, the claimant may not be entitled to recover damages for the portion of the delay caused by outside factors, their own actions or their omissions.

Consequently, claimants must meticulously assess the causes of delay and determine the respective degrees of responsibility borne by each party. For cases involving concurrent delays, apportioning responsibility based on each party’s contributions may be necessary, often requiring expert witness insights from unaffiliated professionals in project management, scheduling and construction law.

Doctrine of Avoidable Consequences

Claimants, under Florida law, have a duty to limit the damages caused to them by other parties. This is referred to as the doctrine of avoidable consequences, and is also commonly referred to as a duty to mitigate damages. This principle, known as the “prevention principle”, maintains that a party cannot claim damages for a delay resulting from its own breach of contract. This legal concept prevents a claimant from attempting to recover damages which the claimant “could have avoided without undue risk, burden or humiliation”. In other words, the claimant must have made a reasonable effort to mitigate the damages caused by any delays in order for their claim to be successful.

The Importance of Legal Counsel

Parties to a construction delay dispute would be wise to avoid “going it alone” and attempting to wade into a dispute without experienced legal counsel.

Seeking guidance from experienced construction law attorneys licensed to practice in the State of Florida is highly recommended for claimants embarking on the pursuit of construction delay claims. Likewise, parties accused of construction delays would be well served by retaining an experienced counsel to defend against claims by the other party.

Construction delay claims are intricate and necessitate a comprehensive understanding of the associated legal considerations. By carefully addressing contractual requirements, concurrent delays, mitigation, causation, types of damages and including expert witnesses as required, parties can increase their prospects of prevailing in a construction delay dispute.

South Florida Law

If you are involved in a civil dispute related to construction delays, it is vital that you work with an experienced construction litigation attorney who can guide you through the processes in the most efficient manner possible. At South Florida Law, we have years of experience handling complex cases involving litigation and dispute resolution in the construction space, and we have the resources to help you navigate the legal system and achieve the results you need.

We counsel on all commercial dispute resolution mechanisms including mediation, arbitration and litigation.

We also understand that staying within our client’s financial budget is important and work closely with our clients to keep our legal services cost-effective while providing aggressive representation both in and out of court. Contact us today to get started by reaching out to us on our contact form or by calling (954) 900-8885.