You’re in the middle of a job and the party with whom you have a contract breaks a material term of the agreement. What does the law allow you to recover? The answer is found in the law of damages. While the law of damages can vary, some general principles typically apply in most jurisdictions in the
Construction contacts often include provisions that provide for pre-determined or “liquidated” damages in the event of a breach. Such provisions can provide certainty to the parties as to the consequences of a breach and can simplify the task of proving up damages at trial. However, as one contractor found out recently, courts may refuse to
Loss of productivity damages are commonly estimated using a “measured mile” analysis, which compares unimpacted construction work to work which has been disrupted to determine the cost impact of the disruption. Such analyses often require expert testimony that must satisfy the reliability requirements of Rule 702 and Daubert. Generally speaking, to be reliable the analysis must