No Written Notice of Delay? Big Problem! Court Sides with Contractor in Termination Dispute
Earlier this week we saw the court in Patriot Construction use the waiver doctrine to excuse a subcontractor’s failure to strictly comply with the documentation requirements of the contract. As a litigant in Illinois federal court found out last week, it doesn’t always work out that way. Boldt v. Black & Veatch involves the 60-turbine Cardinal Point Wind Farm in Good Hope, Illinois.
The Details
Black & Veatch, the general contractor, hired Boldt to erect the turbines. Black & Veatch terminated Boldt for cause after it fell behind schedule right out of the gate. Boldt sued for wrongful termination claiming the delays were caused by the turbine manufacturer, among others, for delivering the turbines late.
In the event of a delay by the turbine manufacturer, the contract required Boldt to provide two notices to obtain cost and/or schedule relief:
- An initial notice within five days of learning of the event and
- A second more-detail notice within 20 days of an actual, demonstrable delay.
While Boldt provided the initial five-day notice, it failed to provide the second, more detailed 20-day notice.
Failure to Comply with Written Notice Provision
The Illinois Supreme Court found that Boldt’s failure to strictly comply with the notice provision precluded it from trying to shift blame for project delays and was fatal to Boldt’s wrongful termination claim. In contrast, the court found that Black and Veatch gave proper notice of default under the contract and fully complied with the contract’s termination-for-cause procedures. Black & Veatch’s breach-of-contract counterclaim against Boldt therefore survived summary judgment and is headed for trial.