We all have heard that time is money. If we lose time, then we lose the opportunity to make money. In the construction world, time is more than money because when a construction professional loses time, more than just opportunity is lost. In construction, there is a direct cost to time: overhead, wages, equipment rentals, and the possibility of having these time driven costs of others or liquidated damages passed onto you. In construction disputes, there is often an effort by general contractors to blame one of their subcontractors for causing a delay; or a subcontractor to blame the prime contractor, or one of the prime contractor's other trades, for the delay. The legal term for pointing the figure at each other is called “concurrent delay.” When a concurrent delay occurs, there is need to apportion delays between the multiple causes. But, for the apportionment rule to apply, there must be some overlap between the causes, and each must delay the critical path of the project. In other words, no harm no foul.
In two recent appellate decisions, Cortinas Painting & Restoration, Inc. v. Corp Inc., 200 Wn. App. 1068 (2017), and Kenco Construction v. Porter Brother Construction, Inc., 2018 WL 2966785 (2018), Division 1 of the Court of Appeals consistently held that to make a difference, the two instances of delay must have some relationship to the overall path of the project. Cortinas Painting involved project delays blamed on a painting subcontractor during the construction of a fire station owned by Mercer Island. The general contractor withheld the subcontractor's progress payments to cover the liquidated damages assessed by the City resulting from the non-issuance of the certificate of occupancy (CO). The painting subcontractor contended that the project's critical path was delayed by faulty roof construction. In rejecting the painting subcontractor's argument, the Court of Appeals observed that the roof reconstruction occurred after the CO was issued, ceasing the liquidated damages. Therefore, the roof had no relationship to the project's critical path. Had the faulty roof delayed the issuance of the CO, then the result may have been different, as either event would have exposed the general contractor to liquidated damages. In that case, apportionment of the delays would have been necessary for the general contractor to pass on the liquidated damages to the painting subcontractor.
Likewise, in Kenco Construction, a general contractor attempted to blame its roofing subcontractor for delays involving the installation of the envelope system on $30 Million public high school project. Substantial evidence was presented at trial demonstrating that the installation of Kenco's roofing system was in fact delayed by other trades. Because Porter Brothers put 100% of the blame on Kenco, no evidence was presented to warrant an instruction allowing apportionment for the prime contractor's self-inflicted delays. In returning its verdict in favor of Kenco, the jury agreed that Kenco did not breach its contract due to the general contractor's mismanagement of the project. In affirming the verdict in favor of Kenco, the Court of Appeals recognized that the jury specifically found that Kenco did not breach its subcontract. Even if the jury was instructed to apportion delays, they had nothing to apportion since Kenco did not cause any delays to the project.