The Cumulative Impact Claim: Where Do We Stand In 2010? - Defense Counsel Journal

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Cumulative impact is the disruption that happens between multiple change orders and basic work, but does not include local disruption directly attributable to a specific change order. A cumulative impact claim does not logically have to amount to a cardinal change in the contract, it is the aftermath of the inability of the contractor to accurately foresee or account for all impact costs resulting from the multiplicity of change orders, not the result of a change in the purpose of the project.

Nevertheless, courts have often confused cumulative impact claims with cardinal change claims. In evaluating cumulative impact, courts will be inclined to focus on waiver and reservation language in the change orders to resolve these disputes, and may be swayed by the arguments of owners that other factors (not cumulative impact) caused the reduction in productivity.

Practitioners bringing cumulative impact claims must be prepared to rebut arguments based on accord and satisfaction, as well as arguments on causation. To support their estimates of loss and causation, they should use experts that have the background and knowledge to support opinions that are testable and based upon methodologies that are generally accepted in the construction industry.

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