ABA Forum Article on Claim Preclusion Clauses

By: Daniel M. Drewry

Claim preclusion clauses, such as notice requirements that govern when and how a claim can be brought or clauses that limit the types of damages that can be claimed (or whether any damages can be claimed), vary wildly in content and enforcement from state to state, but they all share a common trait: they can quickly land a party in dangerous and unknown waters.  I recently had the opportunity to work with two excellent construction attorneys, Julia Davis, with Bankston Gronning O’Hara out of Alaska, and Julie Muller, with Wyatt, Tarrant & Combs, LLP in Mississippi, on a presentation and article addressing the changing world of claim preclusion clauses.  The article discusses the different approaches to notice requirements, the enforcement of, and exceptions to, no damage for delay clauses, and recommendations for addressing these (and other claim preclusion issues) in your contract.  The article was just published in the February 2012 edition of Under Construction, the quarterly newsletter for the ABA Forum on the Construction Industry.  Although written for a construction attorney audience, the article still provides helpful insight for owners, designers and contractors in approaching and dealing with claim preclusion clauses.  To read the article, click here.