Issue link: https://read.dmtmag.com/i/196134
WORLD FENCE NEWS • NOVEMBER 2013 • ALEXANDRIA, Va. — An Ohio appeals court on Sept. 5, 2013 affirmed a lower court's decision granting damages to a construction contractor whose claims were initially denied when it could not meet the unworkable notice and claims requirements in its contract with a public owner. The American Subcontractors Association and ASA of Ohio urged the appeals court to uphold the lower court's decision in an amicus brief filed on Sept. 24, 2012, in J&H Reinforcing & Structural Erectors, Inc., v. Ohio School Facilities Commission. The Court of Appeals of Ohio, 10th Appellate District, reviewed and overruled all 21 of the Ohio School Facilities Commission's "assignments of error" and J&H's three "assignments of error" and affirmed the judgment of the Court of Claims of Ohio. On Feb. 10, 2012, the Court of Claims ruled that notice and claims provisions placed an "impossible burden" on the contractor, whose claims were denied despite substantially following the notice and claims process and writing numerous letters to the project's construction manager detailing the impact of unforeseen site conditions and the late delivery of air handling units. The late delivery di- ASA had filed brief in support of contractor Appeals court affirms lower court decision that notice and claims provisions placed "impossible burden" on contractor rectly affected the progress of all of the other trade contractors that were to follow the installation of the units, trades whose work was required to be performed prior to the contractor's work. After the Court of Claims decision, the Ohio School Facilities Commission, which administers the entire Ohio Public School Building Program, appealed, and contractor J&H then cross-appealed. In their brief, ASA and ASA of Ohio explained to the Ohio appeals court: "The Contract contained multiple differing and unworkable claim notice provisions which had the effect of placing J&H in a position where it was impossible to strictly comply when the cause of delay was beyond the control or knowledge of J&H. "For example, Article 6.4.2.2 required J&H to identify all responsible parties for any delays, even if it was, as the Referee and trial court found, an 'impossible burden on J&H' because J&H could not know whether the [air handling unit] delay was caused by the manufacturer, U.S. Customs, the in- staller, the engineer, the OSFC, the Construction Manager, or some other party. Similarly, J&H did not know, and could not be expected to know, when that delay would be incurred, and whether the schedule could be revised." J&H entered into the construction contract with the commission and agreed to perform general trades work and other subcontracting, as well as to self-perform masonry and interior case work, on the Wheelersburg Local School District K-12 school building construction project. "Construction schedules are generally revised by construction managers, after such delays, with input from the impacted contractors and subcontractors," ASA and ASA of Ohio noted. "But here, the construction manager performed unilateral and undisclosed schedule revisions, without considering such input. The Construction Manager's computer program is designed to aid in schedule adjustments … However, OSFC's Construction Manager overrode its 55 computer program to produce an illogical and 'unworkable schedule,' to the detriment of J&H." J&H filed its complaint against the commission seeking damages for OSFC's breach of contract, including, among other things, costs, expenses, and losses J&H sustained as a result of numerous delays that occurred on the project. "… Upholding the Court of Claims decision will serve as a stark warning that this sort of gamesmanship will be seen for what it is and will be prohibited by the law of the State of Ohio," ASA and ASA of Ohio wrote. ASA's Subcontractors Legal Defense Fund financed the brief in this case. The SLDF supports ASA's critical legal activities in precedent-setting cases to protect the interests of all subcontractors. ASA taps the SLDF to fund amicus briefs in appellate-level cases that would have a significant impact on subcontractor rights. Contributions may be made to the SLDF via the ASA web site. S E C U R I T Y F E N C IN G INFORMATION RESOURCE WORLDFENCENEWS.COM