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Immunity Allows Fulton County to Avoid Liability for Contractor’s Claim Based Upon Unwritten Change Orders

Poole Huffman, LLC

Whenever a party to a contract believes that the other side has failed to perform in accordance with the agreement, the results can be complicated. This is especially true if the law gives one party to the contract immunity from suit in certain situations. This is just one of many potential unique challenges that might emerge in a breach of contract situation. An experienced Georgia contract litigation attorney can help you be prepared for whichever unique challenges occur in your case.

One example of a case involving immunity was an Atlanta contractor’s breach of contract lawsuit related to its construction of a cultural center in the Atlanta area. The contractor signed a contract with Fulton County for the construction of a new “Aviation Community Cultural Center” near the Fulton County Airport. The contract included a time term, dictating that the contractor was required to complete its work within 287 days of the date that the county gave it the green light to start work, or the date work actually began, whichever was first.

The contract did contemplate that the work could take longer. The agreement allowed for what’s called a “change order,” which in this case must be a written document signed by both parties, extending the time for completing the work due to changes in project scope, or the emergence of other delay-inducing issues outside the control of the contractor.

The contractor started work in May 2013. However, instead of 287 days, it took the contractor 365 days to get the project finished. According to the contractor, the delays were outside its control. They happened due to bad weather, “delays caused by the county’s design for the cultural center, the county’s unwillingness to make timely decisions on changes,” and the federal government shutdown that triggered delays in certain permit processes.

To back up its assertion, the contractor pointed to more than 30 change orders contained within the change order evaluation log. What the contractor didn’t have, however, was written documents signed by both parties to back up any of these change orders.

That was a huge problem for the contractor because it was in a contractual relationship with a governmental entity. Governmental entities have what’s called “sovereign immunity,” which protects them from being sued except in certain specific situations. As it related to this case, the state had waived sovereign immunity with regard to breaches of written contracts. It had not, however, waived immunity for legal actions arising from “modifications to the written contract that failed to follow the written change order policy outlined in the contract.”

There was a very specific set of directives regarding how change orders, even including emergency change orders, were to be processed. The change orders upon which this contractor relied did not comply with the procedural rules. That meant that the basis of the contractor’s lawsuit did not fall within the range of things for which the county wasn’t protected by immunity. As a result, the Court of Appeals concluded that the county was entitled to a summary judgment in its favor.

Whenever you are facing a commercial litigation action or a potential one, make sure you are prepared by having reliable representation. The skilled Atlanta contract litigation attorneys at Poole Huffman, LLC have been diligently working on behalf of our clients for many years to pursue successful results. Contact our attorneys online or by calling 404-373-4008 to schedule your confidential consultation.

More blog posts:

Confirmation Letters – Avoiding Potential Conflict Regarding Agreement Terms, Atlanta Business Litigation Attorneys Blog, April 5, 2016

New Garnishment Ruling: What You Should Know, Atlanta Business Litigation Attorneys Blog, Atlanta Business Litigation Attorneys Blog, Sept. 29, 2015

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