At the heart of any construction claim are two key elements – a rock-solid causal connection linking damaging actions to the responsible party, and the establishment of a viable theory of entitlement.
Successful resolution of a construction dispute depends on expert handling of these elements, which is why the support of an experienced, credentialed construction claims consultant is so important. An expert construction claims analysis is the foundation of a strong case.
Establishing a Causal Connection
Our first step in the construction claims process is to perform a comprehensive review of the the actions or inactions of the facility owner (or those under his control). From this we will develop proof of how they negatively impacted you, the contractor. This establishes the causal connection, which is necessary to determine entitlement to damages. Without this step, your construction claim cannot move forward with any hope of success.
“Theory of Entitlement” is a legal term referring to “how to deal with holdings that are unjustly acquired or transferred, whether and how much victims can be compensated” (from Wikipedia.org). Based on the fact analysis performed in the first step, a viable theory (or theories) of entitlement must be established.
One often misunderstood theory is “Impossibility of Performance”, in which an owner (or prime contractor’s) actions render the contract impossible or impracticable for the contractor (or sub) to perform. For example – the imposition by the public owner of a bridge of its contractor’s performance of construction during a 50-year flood.
We have over 20 years experience in identifying and developing causal connection and theory of entitlement specific to construction claims, with a proven record of success.
When it comes to claims for monetary damages, another important determination made by the claims expert is whether the claim can be resolved fairly and relatively quickly in negotiations with the construction owner.
An expedient negotiated settlement is by far the best way to maximize the net recovery for the contractor and still permit it to remain solvent. Avoiding a drawn-out legal process minimizes the financial impact on the construction owner as well.
Expert Claims Report
Only after the above steps are thoroughly completed, we will draft the Expert Claims Report. This report, once approved by you, can then be delivered to the owner-client in the form of a Request for Equitable Adjustment (REA). This will serve as your notice to the owner that you have the high ground in the dispute, while also making the point that a settlement negotiated in good faith is better than litigation – for both parties.