Delay and Disruption Claims
•Delay and disruption claims are always a risk in the best conditions on a construction site. Never more so than during the global pandemic brought about by COVID-19 and related labor and material disruptions.
•Depending on the specific contractual terms and the impact COVID-19 and related governmental orders have had on a specific project, this pandemic may be considered a force majeure, delay, change in law, suspension and/or other applicable event.
•Subcontractors should be aware of these clauses in their subcontract and in the prime contract in order to be able to use these clauses or other legal defenses under applicable law to attempt to excuse their late completion of projects that are delayed or interfered with due to COVID-19’s unforeseeable events, and to possibly bring claims for delay and/or disruption due to increased costs caused by COVID-19 or other unforeseen or unanticipated events.
•Owners and general contractors may be entitled to damages against subcontractors caused by long delays and disruption and subcontractors should be aware of defenses or counterclaims that subcontractors may raise, including, subcontractor claims that the owner and/or general contractor caused or exacerbated delays or disruptions.
This presentation will provide an overview of key issues to being successful in pursuing or defending against claims related to delay and disruption, especially in light of the difficulties caused by COVID-19, and how to best document and position claims and defenses to maximize the chances of success.
Jim Sienicki's practice involves construction contract preparation, construction law representation and litigation, procurement law and bid protests, general commercial litigation, creditors' rights and other litigation, alternative dispute resolution and appellate matters. Jim is a construction mediator and arbitrator. Jim was the head of Snell & Wilmer’s construction practice group for over 15 years, and the firm’s construction litigation practice has been recognized as a National Tier 1 practice for the past nine years by U.S. News and World Report/Best Lawyers. Jim has been named to Best Lawyers in America® 2003-2021 in the areas of Construction Law and Construction Litigation. The Best Lawyers in America® also named Jim Phoenix Lawyer of the Year, Construction Law, in 2013 and Phoenix Lawyer of the Year, Construction Litigation in 2018.
Ed Hermes is a commercial litigator with Snell & Wilmer L.L.P. whose practice is focused on complex commercial, tax, property, and construction disputes. His experience includes litigation regarding breach of contract and tort claims, commercial and residential construction disputes, tax disputes and appeals, and disputes involving Federal Indian Law. Ed has also worked on garnishments, subpoena responses, lending matters, Fair Credit Reporting Act (“FCRA”) claims, LLC disputes, tort claims, and other general litigation issues, and regularly appears on behalf of his clients in state, federal, and tribal courts and administrative tribunals throughout the Southwest. Having previously lived and worked in Indian Country, Ed also advises companies and economic development entities in conducting business and creating job opportunities in Indian Country.