The Washington Bar News published an article authored by Lindsay K. Taft and me entitled “Construction Contract Draconian Notice Provisions: Is Prejudice Still the Issue” (Washington State Bar News May 2012 and July 2012). As our loyal readers are well aware, since the issuance of the Mike M. Johnson decision (Mike M. Johnson v. County of Spokane, 150 Wn.2d 375, 78 P.2d 2003) a knee-jerk reaction to any contractor claim (general contractor claim against an owner or a subcontractor claim against a general contractor) is now a lengthy procedural inquiry as to whether the contract’s written notice provisions were complied with. If that procedural analysis demonstrates that the contractor missed either the deadline to provide the notice of the claim or failed to provide a claim document itself by the contract’s deadline, chances are the contractor may either lose the claim all together or the claim amount will be substantially reduced in the ensuing negotiation. The notion that a claim can be waived even though the entity seeking the waiver has suffered no prejudice (harm) as a consequence of the tardy claim notice compliance is contrary to any notion of equity and fair resolution of construction disputes on the merits. We have waxed and waned on this topic in previous blog articles (See Mike M. Johnson-v-Spokane-County Contract Notice and Claim Clauses are strictly enforceable; Written Notice Requirements – Time To Revisit The Prejudice Issue: Part I; Written Notice Requirements – Time To Revisit The Prejudice Issue: Part II ; Written Notice Requirements – Time To Revisit The Prejudice Issue: Part III ; and American Safety v City Of Olympia Supreme Court Affirms And Clarifies Mike M. Johnson ).
This recent Bar article was written primarily for lawyers, judges and other legal professionals involved in the construction industry as a wake-up call to the dilemma presently faced by contractors and as a guide to the legal professionals who may be less familiar with construction law as to how to navigate the tricky course through the treacherous notice provisions in private and public construction contracts. If you are not an A+C client, you may want to keep this citation for the eventuality that you run into a notice issue and share this article with your legal counsel.