IV. (§12.28) Jointly Caused or Concurrent Delays
Frequently, the delaying party contends that the delay was also due to other causes, such as inclement weather, strikes, or the conduct of the claimant. As a general proposition, absent a contrary contractual provision, a party will not be liable to its contractor or subcontractor for delay unless caused by that party or circumstances under its control. Havens Steel Co. v. Randolph Eng’g Co., 613 F. Supp. 514 (W.D. Mo. 1985). Some courts deny recovery to either party when both caused the delay unless the delay can be allocated. J.A. Jones Constr. Co. v. Greenbriar Shopping Ctr., 332 F. Supp. 1336 (N.D. Ga. 1971), aff’d, 461 F.2d 1269 (5th Cir. 1972); Pathman Constr. Co. v. Hi-Way Elec. Co., 382 N.E.2d 453 (Ill. App. Ct. 1978). The same applies to the owner’s right to recover liquidated damages. United States v. United Eng’g & Constructing Co., 234 U.S. 236 (1914); Southwest Eng’g Co. v. United States, 341 F.2d 998 (8th Cir. 1965).
When the claimant was not a contributing cause, recovery will be allowed if...
