Contractor Prevails on Impact Claim

Kegler Brown Construction Newsletter

After a hotly contested two-week trial, a contractor we represented on an OSFC school project recovered almost $1 million on a delay and inefficiency claim. J&H v. OSFC, Case No. 2010-07644, Court of Claims (February 10, 2012).

The Referee, appointed by the Ohio Supreme Court to hear the case, ruled that the OSFC’s construction manager “sowed conflict and dissension,” which constituted a “lack of good faith,” as well as “deliberately manipulated its own scheduling software.” The decision also found that the construction manager and the OSFC “failed to process in good faith the Article 8 claim of the contractor.” The decision recently was upheld by the trial court Judge in all respects.

The decision also found that change order release language signed by the parties had only limited application to the specific changed work in the “description” of “this change to the work,” despite the broad form boilerplate language (“full and complete satisfaction for all direct and indirect costs … which has been or may be incurred in connection with this change to the work, including but not limited to, any delays, inefficiencies, disruption or suspension, extended overhead, acceleration and the cumulative impact of this and other change order issues as of this date”) that the OSFC never modifies in its change orders.