Remember the superintendent who decided to go to law school after our speakerphone showdown? Here’s another real-world case that provides another lesson on risk avoidance:

The 2023 Oregon case, Kizer Excavating v. Stout Building Contractors is a take on the idiom “no good deed goes unpunished.”

In the case, an excavator performed 3,290 cubic yards of work, which was far beyond the 1,500 yd³ estimate, due to a bad survey and unexpected water.

Kizer submitted a late change order. It was denied.

The trial court awarded payment under Plaintiff’s quantum meruit claim (“a reasonable value for extra work”). However, the Oregon Court of Appeals overturned it because in that jurisdiction, quantum meruit only works if there is no contract covering the activities.

Why?

Because the work was still covered by the original contract.

Kizer made a mistake many subcontractors make…it performed the additional work before getting a signed change order authorizing the work for a specific negotiated price.

Why does this matter?

Contract gaps or missed procedures don’t just create ambiguity, instead they create liability. Even when work aligns with intent, without clear contract pathways, the silent parts of the contract can become obstacles.

My own experience with the change order process created similar risks for both my company and the general contractor. It was expected that my company would perform new work not in the original scope while the change order was tied up in a months-long, what sometimes felt like an intentionally protracted negotiation. We rarely received full value for the work performed but accepted what we could get, because we had workers to pay and the work was done before the change order pricing had been accepted.

So what’s the takeaway?

When contracts are silent, going along to get along doesn’t protect, it exposes.

Always clarify scope, follow change order procedures, and document authority before proceeding. In my case, effort without procedure didn’t protect my company and did not always yield fair outcomes.

Contract gaps or skipped procedures don’t just create ambiguity, they carry the potential of creating liability. When scope or process isn’t clear, speaking up and getting it on the record protects your company’s interests.

I had a law school Dean once tell me when I got my first job out of law school to keep a “book of insurance.”

That book contained all of the on the job “issues” that crept up, issues of contention and accolades, just in case I had an issue with my employer. I carried that advice from my first job in a law firm and it helped lead me to create construction technology that serves as an owner’s and contractor’s “book of insurance.”

Remember: Document like you’re going to court. Truth lives in the record.

#Tiffanystales #pierferd #ctbim #constructiondata #constructiontechnology