Accurate Electric Loses its Claim against State Due to Late Notice
Kegler Brown Construction Law Newsletter September 1, 2016
In another case filed by an electrical contractor against the State (prosecuted by another firm) before Judge Crawford in the Court of Claims, the Court granted a motion for summary judgment against the contractor for a failure to give timely notice of the claim. The Court emphasized that the electrical contractor was already "off the project" before the Article 8 notice was provided.
The electrical contractor argued that any failure to give timely notice was excused because of the State’s failure to comply with its own contractual duties. Judge Crawford held that even if there were breaches of other (non-Article 8) provisions of the contract – "which did not amount to material breaches" – the failure to give timely notice was unexcused. In other words, if the State’s breaches were not material and did not involve the Article 8 process itself, the failure to give a timely Article 8 notice might still be fatal to the contractor.
The lesson learned here is that Ohio contractors must give timely notice or prove by "clear and convincing evidence" that the State waived the Article 8 process, or materially breached the contract.