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Construction Law
specifically been deleted in multiple provisions of the AIA A201-2017, this most recent version contains almost 40 references to provisions with some sort of writing requirement. For any dispute involving these provisions, defense litigators may be able to avoid potential liability, or at the very least limit potential damages, where no writing was provided. For those negotiating and drafting construction contracts, whether using the AIA A201 or not, insisting upon written notice requirements may ultimately be an important tool in both establishing the duties of all parties involved and clarifying the scope of disputes and potential consequences. As stated by the court, “[p]arties may still disagree about whether a writing is sufficient, but unlike with an alleged oral conversation, they cannot disagree about what has actually been said.”
Furthermore, the written notice requirement is by no means limited to the construction context. The James v. Westlake opinion itself makes reference to contractual notice requirements in cases involving insurance litigation, family law, mechanic’s liens, and general breach of contract cases. Thus, it is not unreasonable to infer that the strict interpretation of contractually required written notice requirements could, and does, apply to any situation where the parties have agreed that written notice is a condition precedent to some occurrence in the contract. It’s easy to imagine how this principle could arise in cases involving real property, employment, landlord/tenant, and insurance defense, among others. Again, depending on the facts of the case in these situations, the failure to give contractually written notice may provide an important tool to limit, or avoid, liability.
However, the strict requirement of written notice is not without limit and must be considered in context. First, the written notice requirement is likely to be limited to the disputed provision at issue and its purpose. In James v. Westlake, the court went on to explain that, while the failure to give written notice relieved James of their obligation to pay for Westlake’s excess damages, it did not relieve James from complying with other provisions of the contract, including indemnifying Westlake for a suit brought against Westlake for wrongful death arising out of the project. As the court explained, the failure to give contractual written notice here was simply a condition precedent to James’s liability for Westlake’s excess costs. It was not a covenant giving rise
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FDCC ANNUAL FIVES 2023