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K&L Construction Law Blog Legal issues, news, and regulations concerning the construction industry

Contractors Must Follow Contractual Notice Procedures

Posted in Washington

Absher Constr. Co. v. Kent Sch. Dist., 77 Wash. App. 137, 890 P.2d 1071 (1995)

In this case, a contractor and subcontractors brought action against a school district for breach of public contract for the construction of an elementary school.  Subcontractor Emerald was hired to work on the school’s HVAC system for Chapman, to whom Absher had subcontracted mechanical work on the project.  Absher’s contract with the school district required all claims to be filed in writing with the district within 14 days of events giving rise to these claims.  Absher did not provide notice of Emerald’s claims until months after Emerald had completed all of its work.  The Superior Court, King County, entered summary judgment for the school district.  The contractor and subcontractors appealed.

The court of appeals held that:

1) Proper notice of the claim was not given.  Emerald’s submission of partially filled out forms to sub-consultants and the district’s field personnel were not sufficient to meet the notice requirement.  In addition, under the contract, claims must include the amount of the claim and length of the claim sought, neither of which was present.

2) Contractor and subcontractors had to comply with dispute resolution process set forth in the contract.  They had followed the correct procedures for seven other claims and had successfully received compensation, so they should be expected to continue their pattern of compliance.  In addition, Emerald waived the claim by failing to identify it in its nonclaim affidavit, and by accepting final payment.  Absher’s claim was also precluded by the contractual claim limitation period of 14 days.