It promotes a more definite understanding between the parties and thus, helps to avoid potential controversies. Bethlehem community of Clarksville. Later, in , the Court permitted the husband of a woman killed after being struck by an automobile to maintain an action as a third party beneficiary against the insurance company of the owner of the automobile. They have been permitted to recover when the courts have found that their fellow prime contractor assumed an obligation of the owner to them the "duty owed" test or that their fellow contractor assumed an independent duty to them in their own contract with the owner the "intent to benefit" test.
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We now turn to the question of whether Moore put on sufficient proof to support its claim for damages. Hence, apyroll difficulties prevalent in third-party beneficiary contracts are 8.2. as a result of the peculiar problems presented by construction contracts. Moore's Third Party Beneficiary Claims Moore's causes of action against Kennon and its bonding company, Cincinnati Insurance Company, are based upon the theory that it was the third party beneficiary of the contract between Kennon and the Department and of the performance and labor and material payment bonds issued by the bonding company.
Rather, the majority of the Court held: For the reasons stated herein, we modify the judgment of the trial court. Having determined that Moore has a valid cause of action against the Department and Kennon, we now turn to the question of damages. Contractor's Damages Resulting From Delay Attributable to the Owner Having determined that Moore has a valid cause of action against the Department and Kennon, we now turn to the question of damages.
Several other similar meetings were also conducted prior to the substantial completion of the project.
In this regard, Mr. With regard to payment for this extra work, Moore's president testified: Housing Authority of Humboldt, Neb. Finally, in the Spring ofClarksville Engineering, on behalf of the Department, instructed Moore to go back to work and also directed it to perform certain extra work consisting of cleaning up and removing trash that Kennon had refused to remove.
As a result of this meeting, the parties agreed to adjust the schedule to allow for the delays they had already experienced. Only the Agreement and General Conditions were included in this record. Beginning in September,Moore began to make a series of complaints that it could not complete its work because of Kennon's delay in performing its work and because Kennon and its subcontractors were not using the areas designated for storage of materials and equipment but rather were storing their equipment and materials adjacent to the building.
All that is required is proof with a reasonable degree of certainty. This provision specifically recognizes 1 the cost of material, 2 the cost of labor including benefits3 bond premiums, 4 insurance, 5 the rental value of pqyroll and machinery, and 6 supervisory and field office expenses directly attributable to the change.
The Department's original counsel also withdrew at this time, and thus, at trial and on this appeal, the Department and Kennon are represented by the same attorney. With regard to payment for this extra work, Moore's president testified:. Moore Construction Company filed this action in the Law and Equity Court for Montgomery County based alternatively on contract and quasi-contract theories against the Clarksville Department of Electricity, the Kennon Construction Company a co-prime contractorand the Cincinnati Insurance Company Kennon's bonding company.
Affirmed March 24, The accrual pagroll such interest is, at best, a special damage that was not within the contemplation of the parties. The Department also requested 82.1 Moore provide additional information concerning its delay damage claim. The courts have generally relied upon the following factors to support a prime contractor's th party claim: This is a contract between you and your supplier. See also 2 Rn. Accordingly, we find that like the claimed increase in the cost of the fencing and the gates, Moore can properly claim as damages its increased supervisory costs attributable to the delay, its increased overhead expenses attributable to the delay, and its losses due to the loss of efficiency in the use of its equipment.
The issue presented by Moore's claim that it was an intended beneficiary of the contract between Kennon and the Department is whether an independent prime contractor can be an intended or third party beneficiary of a construction contract between the owner and another prime contractor for work being performed as part of yn same construction project.
Thus, construction delays have consequences that are quickly translated into time and money, and in certain situations a contractor whose performance is delayed unreasonably is entitled to both an extension of time and damages. The letter said, in part: Thus, Tennessee courts have generally attempted to decide whether a party can maintain an action based upon a third party beneficiary theory using a process of elimination. In its contract with the Department, Kennon specifically agreed to confer a benefit upon Moore or any other prime contractor working on the project by agreeing to do its work so as not to interfere with their work and by agreeing to be responsible for and to remedy any damages caused to others' work.
The record shows without contradiction that four of these persons routinely visited the job site while the work was delayed for the purpose of making sure that their work was not being damaged and to determine when Moore would be able to resume its performance and complete its work. Finally, in its letter of September 8.2.1,the Department specifically relied 8.2.11 Kennon's obligation in Articles 6.
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Based upon Moorhead Construction Co. Tennessee law permits the recovery of all damages that are the normal and forseeable result of a breach of contract. Thus, it is not uncommon for courts to find that an owner has waived a written notice requirement in cases where extra work has been ordered verbally by the owner or the extra work has been performed with the owner's knowledge and without its objection.