Thoughts on construction law from Christopher G. Hill, Virginia construction lawyer, LEED AP, mediator, and member of the Virginia Legal Elite in Construction Law
The Supreme Court of Virginia Building Richmond, Virginia (Photo credit: Wikipedia)
Recently, there have been a few cases in construction that have grabbed the headlines (or at least those at this and some other blogs). The biggest stir seems to be from the Jacobs Engineering case discussed so ably by Matt Bouchard in last Friday’s Guest Post. However, while the “headlines” were grabbed by the U. S. Supreme Court’s decision not to review that case, the Virginia Court of Appeals handed down an instructive case regarding delay damages and actual costs.
In Commonwealth v. AMEC Civil LLC, the Court considered the above questions. The basic facts of the case involve a VDOT project that was delayed causing financial hardship to AMEC. Without going into the procedural history of the case (it is well laid out in the opinion and in the Virginia Lawyer’s Weekly summary of it), the case went to the Virginia Supreme Court and back and was appealed again after remand to the trial court.
I have stated to clients on many occasions that paper is a lawyer’s best friend. Because of a recent case from the Virginia Supreme Court, I should modify that to the correct paper is a lawyer’s best friend. In Commonwealth v. AMEC Civil, LLC, AMEC sued the Virginia Department of Transportation (“VDOT”) seeking more than $21 million in damages. The Mecklenburg County Circuit Court granted AMEC almost all of its damages and found that AMEC’s notice of intent to make a claim was proper under the Virginia Code even if it was not in the proper form.
VDOT appealed, claiming that the notice was not in fact proper. The Virginia Court of Appeals agreed with VDOT and overturned the trial court’s findings that the notice was both timely and sufficient. In so holding, the court stated that, of the more than 500 letters relating to the project and stating various concerns, AMEC only mentioned a potential claim in a few of them, and as such, AMEC did not properly notify VDOT of its intent to file a claim. The Virginia Supreme Court affirmed, giving a serious smackdown to AMEC to the tune of millions of dollars.
Essentially, the Virginia Supreme Court applied the same strict construction to the notice statute that it applies to mechanic’s liens and contracts. Aside from the takeaways listed in the great post by @timrhughes at the Virginia Real Estate, Land Use & Construction Law blog (linked above), the point to be emphasized here is that it does not matter if the failure to follow the notice procedure caused any harm, like with a contract or a lien, the Virginia Court’s will stick to the letter of the law, particularly when it comes to suing the Commonwealth.
For this reason, contractors and subcontractors need to consult their attorneys and make sure they understand not only the construction documents that control their project, but the statutes as well.
As always, I welcome and encourage your comments below, please share your thoughts. Also, please subscribe to keep up with the latest Construction Law Musings.
For this week’s Guest Post Friday here at Construction Law Musings, we welcome a good friend, Andrew McRoberts. Andrew is an attorney at SandsAnderson PC. He focuses his work on land use and zoning, subdivision, real estate, tax assessment, special service districts, and other specialized advice and litigation for local governments in Virginia as well as for private clients needing a lawyer with local government experience and insight. Andrew has built expertise in local government law his entire legal career. He is a popular speaker, and authored amicus briefs to the Virginia Supreme Court on behalf of the Local Government Attorneys of Virginia, Virginia Association of Counties and Virginia Municipal League. Andrew is the managing editor and chief author of the Virginia Locality Law Blog on local government issues and legal information in Virginia. You can follow Andrew on Twitter at @AndrewMcRoberts and @VaLocalityLaw. In 2010, he was selected as a “Leader in the Law” by the Virginia Lawyer’s Weekly.
Reportedly, the Obama administration has been seeking as much as $50 billion in new money to invest in highways, bridges, rail and public transit as part of a new stimulus.
This federal study shines a light on the real costs of doing nothing. There is a cost to future economic development of a failure to invest in transportation.
Here are some of the parts of the study I found most interesting.
