Liquidated Damages for Delay Clause In Construction Contracts

In considering the liquidated damage clause of the contract, the contract should be construed least favorably to the drafter (McDonnell-Douglas Automation Co. v. State (1983), 36 Ill. Ct. Cl. 47). However, it is Claimant's burden to prove the contract, the breach of contract, and his damages, if any. (In re Application of Lopez (1987), 39 Ill. Ct. Cl. 315; Harris v. State (1989), 41 Ill. Ct. Cl. 184). Pursuant to section 790.140 of the Court of Claims Regulations, departmental reports may be offered as prima facie evidence of the facts they contain. Menard County Health Department v. State (1989), 41 Ill. Ct. Cl. 200. Where the evidence presented to the Court shows more probably than not that the Respondent should have granted reasonable extension of time for delays due to unforeseen causes beyond Claimant's control and without the Claimant's fault or negligence, then and in that event Claimant would be entitled to all retainage held by the Department as liquidated damages. (Fruin-Colnon Contracting Co. v. State (1967), 26 Ill. Ct. Cl. 138). The Department should allow an extension where the cause of the delay is not the fault of the Claimant. (McHugh Construction Co. v. State (1971), 27 Ill. Ct. Cl. 232). In an action involving a construction contract, it is inevitable there will be some delays and a delay will be tolerated if it is reasonable. J.F. Inc. v. State (1988), 47 Ill. Ct. Cl. 5.