Concurrent Delay
A delay in the completion of a construction project cannot always be attributed to only one party. Sometimes, both the contractor and the owner have engaged in actions or inaction that have affected the timely completion of the project. When only the owner is to blame, the contractor cannot be charged with damages for the delay. Likewise, when the delay is solely attributable to the contractor, the owner will bear no damages burden. However, when both parties cause the delay, the damages outcome is not uniform among the jurisdictions.
The majority follows a "clean hands" doctrine of sorts when a concurrent delay exists by denying a damages recovery to either party. Basically, if one party contributed to the delay then he cannot turn around and seek damages for that portion of the delay caused by the other party. The remaining jurisdictions generally follow the rule that the apportionment of damages to each of the responsible parties is appropriate as long as the delay and resulting damages can be clearly ascertained. To claim damages here, in the concurrent delay context, the party seeking damages must separate out its own delay from that of the other party and then prove the amount of damages it sustained as a result of the other party's delay.
Copyright 2011 LexisNexis, a division of Reed Elsevier Inc.
