12 | 6 | 2006 Posted By John Parnass

Division 1 Rejects "Cumulative Impact" Claim

This dispute between Strand Hunt (SH) and Lake Washington School District arose from a $37 million school renovation project.  SH filed an impact claim of approximately $4.5 million based on alleged delays and "cumulative impacts" to the work.  The trial court granted summary judgment to the owner and Division 1 affirmed, leaving SH with no recovery.

The notable holdings are as follows:

  1. Relying on the Mike Johnson case, Division 1 held SH waived its right to claim for "cumulative impacts" because it failed to submit pricing for such indirect impacts when submitting its pricing for direct cost of the changed work.  The Court rejected SH's argument that it was "impossible" for it have ascertained these indirect costs at the time.  The Court also held that the "event" giving rise to the claim for cumulative impact was the changed work itself, not SH's subsequent "realization" that changes had a cumulative effect.
  2. SH was not allowed to make a claim for quantum meruit as the contract provided a specific mechanism for pricing of changed work.
  3. The contract's terms for pricing of changed work did not violate RCW 4.24.360 (the statute which voids as against public policy any terms which purport to "waive release or extinguish" the right to seek delay costs).
  4. Describing the Eichleay remedy as "severely limited," the Court adopted recent federal case law which makes Eichleay applicable only when a true suspension occurs.