Construction Litigation: What Makes A Strong Lost-Productivity Claim?

Winning a lost-productivity claim is central to arguing other elements of a construction litigation lawsuit.

What is lost-productivity?

KAPIN PLLC commercial litigation New York CityA lost-productivity claim is type of claim that can arise on construction projects. Construction contractors can claim a lost-productivity claim if their method or means of work is altered by an event outside of the contractor’s control.

One way to think about productivity is in terms of measuring the quantity of work achieved in terms of man-hours. If an event happens, that’s out of the contractor’s control, and causes part of the construction effort to take more man-hours than initially expected, the contractor could claim lost-productivity occurred.

One reason this could occur, is if there is a lack of management on site. If an unexpected event happens and the workers do not have a manager on site to inform them on how to proceed, they will lose man-hours waiting on management to advice them. Another reason could be insufficient materials or tools on site, causing delays.

To win a lost-productivity claim, the claimant must present strong evidence to substantiate their case. In doing so they can then create a strong claim for other elements such as extended overhead or delays.

Here are the keys to making a strong lost-productivity claim:

  • Find an experienced construction litigation attorney to help you build your case.
  • Review your construction contracts to find provisions that support your claims.
  • Learn how to accurately measure productivity.
  • Use a variety of tools and guidelines to more accurately measure productivity and to determine what types of evidence you can present in court to support your claim.
  • Research recent past cases of lost-productivity claims to help you more accurately gauge your methods of measurement.
  • Assemble documents that show you’ve recorded daily challenges that have occurred.

Lost-productivity or loss-productivity claims are a challenging area of construction litigation. By capturing data early on in a construction project, a contractor can more easily track and substantiate claims of lost-productivity.

When events don’t go according to the contract, and teams are not on top of their projects to mitigate unexpected problems, contractors can potentially lose a lot of time and money trying to adjust and make up for losses incurred. By keeping close records of events and day-to-day issues, contractors can create a strong financial claim when lost-productivity occurs. Consult with an construction litigation attorney early to maximize your chances at building a rock solid case.

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