Claim Type Terminology

This is the fourth blog post in a six-part series that defines terms commonly used in Engineering, Procurement, and Construction (EPC) project management, construction management, and claims. The first post defined language related to costs, damages, and cost estimating, and the second post addressed construction labor and loss of productivity. The third post covered scheduling and delay, and this fourth post focuses on claim types. Future posts will address contracts and project and construction management.

Acts of God – Natural disasters, including but not limited to floods, fire, earthquakes, tornadoes, hurricanes, lightning, drought, high tides, and other unusual and severe conditions. Contracts often contain provisions by which acts of God are defined in a “Force Majeure” clause by which the owner and contractor agree that the contractor cannot claim additional compensation for increased costs or delays resulting from such acts of God, and the only relief for such events is that the contractor is entitled to an extension of time. However, the contractor must still demonstrate that the activities in its schedule that such acts of God affected were on the critical path of the project schedule at the time that the acts of God occurred, and the contractor was not responsible for other concurrent delays at that time.

Acts of Government (Sovereign Acts) – Actions or inaction by federal, state, county, city, municipal, or other government agencies or officials that stop, delay, disrupt, hinder, or otherwise affect ongoing or planned work. These actions or inactions may be covered by a Force Majeure clause and entitle a contractor to a time extension if they affect critical path work and delay the project. Unless the contract precludes recovery of costs resulting from such actions or inactions, a contractor may also attempt to claim for its increased direct and time-related costs that result from Acts of Government. However, the contractor must still demonstrate that the activities in its schedule that such acts of Government affected were on the critical path of the project schedule at the time that the acts of Government occurred, and the contractor was not responsible for other concurrent delays at that time.

Cardinal Change – The U.S. Court of Claims has defined “Cardinal Change” as a change or series of changes that are beyond the scope of the contract and are a breach of contract. The U.S. Supreme Court defined work within the general scope as work that “should be regarded as fairly and reasonably within the contemplation of the parties when the contract was entered into.”¹ Key terms that indicate that a cardinal change has occurred include “outside contract scope,” “excessive changes,” “beyond contract obligations,” “extent of changes,” and “breach of contract.” There are two basic tests to determine if a cardinal change exists. Test One asks, “Was the type of work within the contemplation of the parties when they entered into the contract?” Test Two asks, “Was the finished product basically the same in form or function as the originally contemplated product?”

Faced with a cardinal change, a contractor has two options. First, it may perform the change and seek breach of contract damages after completing the work. Second, the contractor may refuse to perform and claim breach of contract.² If the contractor performs the change, it can suffer severe financial hardship until it proves and recovers breach of contract damages. If the contractor opts not to perform and the change is ultimately found not to be cardinal, the contractor will have committed a breach of contract because the disputes clause obligated it to perform all the original scope of work and all non-cardinal changes.³

Commercial Impracticability: Performance (Impractical Performance) – This occurs when contract performance becomes, unexpectedly, extremely expensive (e.g., costs double), dangerous, or difficult. Unprofitable work, hardship, or high costs alone are usually not enough. Depending on the existence of contractual provisions stating otherwise, such impracticability may entitle the contractor to a compensable delay if the work affected by such problems was on the critical path at the time that the delay occurred and if the contractor was not responsible for other concurrent delays at that time.

Commercial Impracticability: Supply (Unavailable Material) – Unreasonable difficulty in locating or obtaining necessary materials, supplies, tools, or equipment; unavailability of materials despite exhaustive search for alternative sources; cost of obtaining items is commercially senseless or unreasonably high (e.g., costs approximately double what was planned); procurement or delivery is not possible at the time or place needed. Depending on the existence of contractual provisions stating otherwise, such impracticability may entitle the contractor to a compensable delay if the work affected by such problems was on the critical path at the time that the delay occurred and if the contractor was not responsible for other concurrent delays at that time.

Constructive Acceleration – Constructive acceleration occurs when a construction contractor encounters excusable delay during its performance of the contract work, such as design changes, added scope, unusually severe weather, differing site conditions, acts of God, or owner-caused delays. The contractor is then entitled to a time extension equivalent to the time of excusable delay. The contractor is constructively accelerated when it is not granted the time extension. The contractor must then decide whether to accelerate its performance to meet the mandated completion date. If such circumstances compel the contractor to accelerate its performance, it may be entitled to recover damages based on a theory of constructive acceleration.

Constructive Change – A change in contract work without issuance of a formal Change Order; insistence on performance in a manner different from that allowed by the contract or refusal to accept performance in a manner allowed by the contract. A constructive change can also occur if the owner requires performance of work not called for in the contract but refuses to issue a Change Order. Such constructive changes may entitle the contractor to a compensable delay if the work affected by such changes was on the critical path at the time that the delay occurred and if the contractor was not responsible for other concurrent delays at that time.

Often, notice is not given in a formal written context or in written form at all. For example, the contracting parties who interact daily on a project may perceive and argue that notice has been given of an impact event because the issue is common knowledge for all involved. An example would be where the owner has a designated site agent based full time on site to monitor the progress of the works. The agent would have direct and daily knowledge of project events as and when they occur. The owner’s agent would usually attend daily site meetings, keep a daily diary or log of core issues as observed, and often receive daily or weekly site documents from the contractor. The contractor would argue that the agent, as the owner’s representative, has first-hand knowledge of all claim and change events as and when they occur, or constructive notice, notwithstanding that the contractor has not issued a formal contract letter, and that under such circumstances, the contract notice requirements have been met.

Defective and Deficient Contract Documents – Errors or omissions in the contract drawings or specifications; impossibility or extreme difficulty in performing contract requirements; incorrect dimensions; unattainable performance requirements. Unless the contractor is also responsible for the design, such errors or omissions may entitle the contractor to a compensable delay if the work affected by such errors or omissions was on the critical path at the time that the delay occurred and if the contractor was not responsible for other concurrent delays at that time.

Delay – The time during which some part of the project has been extended due to an unanticipated circumstance. Delays can be either (1) excusable and compensable, (2) excusable and noncompensable, or (3) nonexcusable and noncompensable.

Delay of Approvals (Slow Turn-around) – Unreasonable delay by the owner in approving shop drawings, schedules, samples, or other items that the contractor timely, accurately, and completely submitted. Depending on the existence of contractual provisions stating otherwise, such as a deemed approved clause after so many days without a response by the owner after the contractor’s submittal, such delays may entitle the contractor to a compensable delay if the work affected by such approvals was on the critical path at the time that the delay occurred and if the contractor was not responsible for other concurrent delays at that time.

Delayed Notice to Proceed – The owner fails to issue a Notice to Proceed (for the contract as a whole, or any divisible part of the contract) on the date set forth in the contract, or unreasonably delays issuance of the Notice to Proceed where the contract does not set a specific time for issuance of the Notice to Proceed. The contractor may be entitled to delay costs if the contractor reasonably relied upon the owner’s representations and if the contractor was not responsible for other concurrent delays at that time.

Differing Site Conditions (DSC) – Physical site conditions that either differ from those described in the contract, or that are unusual or extraordinary. The prospects for a contractor to recover after encountering a DSC depend on: 1) the extent of the positive representations as to anticipated subsurface conditions made by the owner; 2) the extent to which conditions encountered differed materially from those represented; 3) the extent to which the contractor could have anticipated or observed the different conditions, by a site visit, previous experience in the geographic area, etc.; 4) the owner’s knowledge of the conditions actually encountered; and 5) the extent to which the contractor provided notice to the owner when the DSC was encountered.

Directed Change (also see Change Order) – In any construction project, various changes in circumstances or conditions can arise that the original contract documents have not covered. Such changes may include errors and omissions in plans and specifications; changes instituted by regulatory agencies; minor design changes; overruns or underruns in quantities; and factors affecting time of completion or the method or manner of performance of the work.

A “change” is an alteration to the contract work involving work already required to be done. In contracts, an “extra” involves additional items of work that are not included in the original contract. Both changes and extras give rise to modifications to the contract.

The pervasiveness of changes in the construction process has not been lost on drafters of construction contracts. Virtually every such contract executed today contemplates the occurrence of changes and sets forth a procedure to implement them by including some form of Changes clause. Typically, the Changes clause establishes a formal procedure resulting in a written amendment to the contract that describes the precise nature of the new and different work to be performed and the compensation to be made therefore. The directed change process is often triggered by a communication from the owner notifying the contractor of the requirement for a change to the design; defining, detailing, and explaining the new and different work to be performed; and requesting a cost proposal for performing that work. The contractor is expected to respond promptly with its lump sum proposal, covering its work and the work of its subcontractors (including appropriate and applicable mark-ups for profit and overhead), and a request for any required time extension. The Change Order clause in question will probably provide for compensation on the basis of agreed-on unit prices, if applicable to the work, or “time and material,” if the owner desires, in which case no estimate or proposal is required from the contractor.

The benefits of having a Changes clause in the contract are that it allows for greater flexibility by permitting changes without necessitating a new contract for each addition, deletion, or revision on a project; and allows for adjustment of plans and specifications to make clear the work the design professional and owner intended to be performed by the contractor without breaking contractual requirements. The Change Order mechanism also encourages the contractor to suggest beneficial changes knowing that it may receive a price adjustment for the additional work performed.

By effectively using this clause, owners (and contractors) can meet unforeseen contingencies without risking a breach of contract or being required to renegotiate a new contract. However, the owner’s right to modify the contract is subject to two significant limitations: (1) the modification should not fundamentally change the contract; and (2) the contractor must be compensated if the modification affects its costs or schedule or both. Changes clauses also have the effect of reducing contingencies in competitive bidding and thus decreasing the overall cost to the owner.

Generally, contracts may not be modified without the consent of all parties. However, Changes clauses may authorize one party, the owner, to modify the contract as needed to meet changing circumstances during the performance of the contract. The wording of the particular clause and the law of the state or country where the contract is executed will govern the owner’s right to make changes or order extras.

While all Changes clauses allow the owner or its representative to initiate change without the consent of the contractor, the Change Order generally must be in writing and must be within the general scope of the contract to prevent being designated a Cardinal Change.

Directing performance of extra work on a construction project was once little more than a rudimentary task for the owner. Unfortunately, such simplicity is no longer the order of the day. Contractors and subcontractors alike are becoming increasingly reluctant to proceed with extra work without complete assurance that all direct and impact costs will be paid. Absent such assurance, they are insisting that the extra work proceed with the right to reimbursement for additional time and costs if warranted. Conversely, owners are equally reluctant to direct additional work if the time and financial aspects are not firmly established. With such an atmosphere, the extra work/Change Order process in construction has become ripe for controversy.

Implied Warranty – The owner carries an implied warranty that the drawings, specifications, and other contract documents that it furnishes to a contractor are accurate and that an acceptable product will result if such specifications are met. Examples of breach of implied warranty of the accuracy of the specifications include misrepresentations of soils conditions, misrepresentation of the availability of construction water, or structural design flaws such as bolts too small to meet loads. Examples of breach of suitability of specifications include the design of a heating system insufficient for a building’s needs, specification of roof insulation that violates local building codes, or specification of foundation piles or pile driving methods that provide an inadequate foundation for a building. In addition, there is an implied warranty that neither party to a contract will do anything to prevent performance thereof by the other party, or that will hinder or delay the party in its performance. On multi-prime projects, there is an implied warranty that the owner or construction manager will coordinate the activities of the respective contractors so as to avoid disruptions.

Impossibility of Performance – The contractor (or any other contractor) cannot perform work according to contract terms due to specification errors or unattainable performance requirements; specified equipment does not satisfy specified performance requirements; performance requirements are beyond state-of-the-art; damage or destruction to the structure upon which contract performance is dependent.

Improper Inspections – Unreasonably burdensome, improper, or overzealous inspection of the contractor’s work by the owner or its construction manager that stops, delays, disrupts, or hinders the contractor’s ongoing or planned work. Improper inspections may also include incorrect or erroneous standards applied or tests performed during the inspection of the contractor’s work. The contractor may be entitled to recover its delay costs for improper inspections if the activities in its schedule that improper inspections affected were on the critical path of the project schedule at the time that the problems occurred and if the contractor was not responsible for other concurrent delays at that time.

Inadequate Supervision – Failure of the owner to oversee or supervise the contractor’s work in progress on site if the contract requires such supervision to allow the contractor to proceed with the ongoing work. Inadequate supervision may also occur when representatives of the owner are inaccessible on a day-to-day basis to address the contractor’s problems and concerns during construction. Such problems may cause delays to the contractor’s work for which the contractor may be entitled to compensable delay damages if the affected work is on the critical path to project completion and if the contractor was not responsible for other concurrent delays at that time. Inadequate supervision is not limited to a problem for which the owner is responsible. The contractor may also be responsible for inadequate supervision of its subcontractors’ work and the delays and costs that result therefrom.

Inadequate Utilities – The contractor may be entitled to compensable direct costs and delay costs if the owner fails to deliver, or delays in delivering, utilities (e.g., electrical power, water, etc.) in violation of the contract, or that were reasonably expected. Also, the contractor may be entitled to compensable direct costs and delay costs if the owner-provided utilities are inadequate to properly support contract performance.

Lack of Access – Access problems can result from impaired access to work areas, small or cramped workspace, and access restricted by other work, strikes, unsafe conditions, etc. Depending on the existence of contractual provisions stating otherwise, such lack-of-access problems may entitle the contractor to compensable delay if the work affected by such problems was on the critical path at the time that the delay occurred and if the contractor was not responsible for other concurrent delays at that time.

Lack of Information or Decision – Time spent awaiting instructions, decisions, or clarifications from the owner; work force or activities shifted while waiting; or efforts wasted because information comes late. Depending on the existence of contractual provisions stating otherwise, such lack of information or decision problems may entitle the contractor to compensable delay if the work affected by such problems was on the critical path at the time that the delay occurred and if the contractor was not responsible for other concurrent delays at that time.

Lack of Permits – Failure of the owner to secure permits or licenses necessary for the performance of the work; delay in securing permits. If the owner was responsible for securing such permits by a contractual date, the contractor may be entitled to recover its delay costs if the activities in its schedule that were affected by not having the necessary permit(s) were on the critical path of the project schedule at the time that the permits were needed and if the contractor was not responsible for other concurrent delays at that time.

Lack of Right of Way – Roadways or routes to or from the project are blocked, unavailable, or otherwise impaired. If the owner was responsible for securing such rights of way to access the project, the contractor may be entitled to recover its delay costs if the activities in its schedule that were affected by not having the necessary rights of way were on the critical path of the project schedule at the time that the rights of way were needed and if the contractor was not responsible for other concurrent delays at that time.

Late or Defective Material or Equipment Furnished by Others (also Owner-Furnished Items) – Failure to receive, or delay in receiving, property, equipment, tools, or data in violation of the contract; receipt of property, equipment, tools, or data unsuitable for their intended use. If the owner was responsible for delivering such material or equipment through its vendors, suppliers, or other contractors, the contractor may be entitled to recover its delay costs if the activities in its schedule that were affected by not having the necessary material or equipment were on the critical path of the project schedule at the time that the equipment or material was needed and if the contractor was not responsible for other concurrent delays at that time.

Latent Defect – A hidden flaw, weakness, or imperfection in a design or constructed component (or entire) facility that a designer or contractor knows about but the owner cannot discover by reasonable inspection.

Maladministration – A contractor has the right to enjoy least-cost performance. Unless specified in the contract, the owner may not interfere with the contractor’s sequencing of work or methods of construction. Maladministration is an entitlement recognized by the courts that allows contractors to recover costs when the owner’s actions or inactions interfere with the contractor’s work.

Maladministration rulings are often based on the doctrine of implied warranty that provides “an implied provision of every contract … that neither party to the contract will do anything to prevent performance thereof by the other party, or that will hinder or delay him in its performance.”⁴

Examples of maladministration may include constructive change, communication failures, overzealous inspection, interference with the contractor’s work, failure to coordinate the project, rejection of or-equal substitutions, unreasonable disapproval of proposed subcontractors, failure to respond to requests for information, misinterpretation of the specifications, or failure to recognize valid Change Order requests.

Spearin Doctrine – If a contractor incurs damages because of problems with the owner’s drawings and specifications, the contractor can usually base its request for an equitable contract adjustment on entitlement supported by the Spearin Doctrine.⁵ In most cases, the courts and boards have relied on the implied warranty established by this benchmark case to find in the contractor’s favor.

The Spearin court said,

But if a contractor is bound to build according to plans and specifications prepared by the owner, the contractor will not be held responsible for the consequences of defects in the plans and specifications.

Strikes – Any unforeseeable strike or refusal by workers to perform work. Unless the contract bars relief for even unforeseeable strikes, the contractor may be entitled to recover its delay costs if the activities in its schedule that the strike affected were on the critical path of the project schedule at the time that the strike occurred and if the contractor was not responsible for other concurrent delays at that time.

Superior Knowledge/Misrepresentation – Performance undertaken by the contractor without knowledge of facts that the contractor later learns are vital to its performance, the contractor had no reasonable way of learning the facts, and the owner knew the facts and either failed to disclose them or deliberately concealed them. If the contractor is delayed and disrupted and incurs increased costs as a result of such superior knowledge, the contractor may be entitled to recover its direct costs resulting from such problems. The contractor may also be entitled to recover its delay costs if the activities in its schedule that such problems affected were on the critical path of the project schedule at the time that the problem occurred and if the contractor was not responsible for other concurrent delays at that time.

Suspension – Owners have the right to suspend work on a part of or the whole contract. The duration of the stop work order must be of reasonable length, and the suspension must be of valid cause. Thirty days for analysis of an unexpected and major change may satisfy the tests of length and cause; 180 days for a family illness fails both tests, and a breach of contract may result. Only the owner has the right to suspend work; the contractor cannot initiate a suspension. However, the contractor can halt, stop, curtail, or alter its operations in the face of massive change on the premise of damage mitigation. The difference is one of style, not content.

Suspensions of work are typically a form of delay and should be thought of as such. In certain situations, however, it may be useful for a contractor to characterize an event as a suspension of work rather than as a delay. Such may be the case if the contract contains a No Damages for Delay clause. It is important to recognize when a delay situation may fairly be characterized as a suspension of work as well as a delay in order to achieve some particular benefit.

Suspensions and delays in the progress of a construction project invariably cause damage, either in the form of revenue loss or in the form of extra expenses. In order to determine whether a contractor will be entitled to damages, one must look to the cause of the suspension or delay and at the express and implied obligations and assumptions of risk in each particular contract.

Termination – Virtually all construction contracts expressly recognize the right to terminate the contract for the default of the other party in certain specific circumstances. Such provisions also recognize the right of the innocent party to recover damages resulting from the default and resulting termination. If the owner cancels for failure of the contractor to prosecute the work in accordance with the contract provisions (i.e., default), the owner may recover the additional costs of completing the work beyond the original contract amount. Even in the absence of an express termination provision, there generally exists an implied right to terminate a contract if the other party has materially breached the contract, and to sue for damages.

In addition, many public contracts and an increasing number of private construction contracts contain “Termination for Convenience” clauses that authorize the owner (or prime contractor) to terminate the prime contractor (or subcontractors) even in the absence of default. If the owner cancels the contract for its own convenience, a contractor is entitled to costs incurred for work completed and materials on hand, including overhead and profit on such work, plus all costs incurred in closing out subcontractor and supplier contracts. A contractor may cancel for owner default such as insolvency or bankruptcy.

Key terms associated with termination claims include “behind schedule,” “failure to prosecute work,” “failure to make payments,” “dismantling operations,” “deactivation of personnel,” “discontinuation costs,” “cessation of labor,” “equipment removal,” “utility cut-off,” “unexpired leases,” “inventory,” “post-cancellation,” “lost profits,” “settlement costs,” and “severance pay.”

Termination comes in two forms. Termination for Default should be avoided. The machinery of payment under a default is difficult and almost always results in litigation. Termination for Convenience is commonly resolved by paying the contractor its actual costs plus a reasonable profit. It is an exhaustive exercise in cost analysis and fine print reading.

Total Cost Claim – A total cost claim contends that the claimed costs are not caused by the actions or inactions of the contractor and are caused only by the factors for which the owner is responsible, and does not detail separate damages as being the result of each specific event. To succeed in a total cost claim, the contractor must do the following:

• Show the bid to be reasonable.
• Show the actual costs to be reasonable.
• Establish that all events contributing to the loss are compensable.
• Demonstrate that there is no other way to calculate the claim.
• Demonstrate that the contractor did not contribute to the increased costs in any way.

Total Time Claim – Name given to a claim in which the claimant alleges a number of legal bases for a time extension and seeks as a time extension the difference between the number of days that the project required to complete less the time, including approved time extensions, provided in the contract.

Unjust Enrichment – It is a general principal of contract law that a successful claimant in a breach of contract case is entitled to be put back in the same position it would have held had the breach not occurred. The doctrine of unjust enrichment provides that a “person shall not be allowed to profit or enrich himself inequitably at another’s expense.”⁶ Under unjust enrichment, the defendant (owner) unjustly receives and retains something of value at the plaintiff’s (contractor’s) expense. Unjust enrichment precedes restitution, which is the restoration of the contractor and owner to a just and equitable state. Unjust enrichment is the act or state of imbalance or inequity, and restitution is the return to equity.

The owner might, for example, be in possession of a mineral processing plant that is substantially complete for which it has paid no money to the contractor. This situation is clearly inequitable, and the court may apply what amounts to a quantum meruit approach to determine the damages to be awarded to the contractor. In these circumstances, the person(s) determining the award of damages may disregard the specific terms of the contract and look to the value of the work performed.⁷

When unjust enrichment occurs in commercial transactions, restitution can be achieved simply by returning the purchased goods. For example, if a shipment of lumber was not paid for by the recipient, restitution would simply be to return the lumber. In general, restitution cannot be achieved in the construction industry simply by returning materials or items to the contractor if the items were installed or work was performed. The disassembly of a process plant will not give a contractor restitution. Instead, the contractor must seek to recover the reasonable value of the work performed, i.e., damages, as determined through the dispute resolution process defined in the contract.

Variation in Quantities – A component of a claimed cost overrun often relates to the cost, quantity, and quality of the materials that the contractor claims to have used on a construction project. In construction contracts, materials are frequently bought on a unit price basis where the parties obviously contemplate some variation in quantity from the contract estimate. Typically, a contractor buys material, adds some form of a markup, and passes the cost on to a project owner. Things become somewhat complicated when an owner, often in an effort to reap cost savings, reduces the specification in anticipation of a credit. The contractor might not pass on the full savings it achieved from the owner’s change. Owners often use a Variation in Quantity clause to cover the situation where the actual quantity varies from the estimated quantity because of imprecise estimates. Of prime importance to the contractor is whether its unit prices are sufficient to cover its overhead and other costs if the number of units significantly changes from the estimated quantities used to prepare its bid.

Another area of dispute is the limitation on variations. Such disputes exist both with respect to variations simply in quantities of work that are paid pursuant to a schedule of unit prices and with respect to variations that are additional works. Many contracts include a provision that, after a given percentage of variation, for example 25 percent, there can be an adjustment to the unit price. These clauses are generally enforceable and are included in contracts in order to avoid disputes. On the other hand, many contracts are silent. In this latter case, looking from an owner’s viewpoint, if the variation relates to the quantities of work as they were shown in the tendering documents, a frequent argument is that since the quantities were represented to be only approximate, there is no entitlement for a contractor to claim, irrespective of the final quantities.

The owner is also entitled to material of a quality consistent with the specifications. The delivery records and supplier invoices can provide extensive information to determine whether the material was of the prescribed quality. If, for example, plumbing specifications required schedule 40 PVC pipe for sewers and the contractor substituted schedule 21 PVC pipe, there would be a significant reduction in quality and a corresponding cost reduction. Similarly, a paving contractor may attempt to substitute thicker layers of cheaper base course hot mix in lieu of the specified wearing course hot mix. In both cases, the owner is left with an inferior product. If it has paid for the specified material, it has a cost claim against the contractor.

War and Other Hostilities – War, civil unrest, or other combative hostilities that stop, delay, disrupt, or hinder the contractor’s ongoing or planned work or its ability to secure necessary labor, materials, supplies, or tools. Such events are typically covered by the Force Majeure clause of a contract and entitle the contractor to a time extension unless the contractor was responsible for other concurrent delays at that time.

¹      Freund v. United States, 260 U.S. 60, 63 (1922).

²      See Boston Shipyard Corp., 886 F2d 451, 456 (1st Cir. 1989).

³      See Simon, Construction Law Claims and Liability, Cardinal Changes, § 11.2 (1983).

⁴      George A. Fuller Co. v. United States, 69 F. Supp. 409 (108 Ct. Cl. 1947).

⁵      United States v. Spearin, 248 U.S. 132 (1918).

⁶      Black’s Law Dictionary, 1705. (4th ed. 1968).

⁷      Restatement (Second) of Contracts § 344 (c) and comment a; c. McCormick, Damages § 164, at 642 (1935); United States ex rel. Bldg. Rental Corp. v. Western Casualty & Sur. Co., 498 F.2d 335, 338 (9th Cir. 1974); B.C. Richter Contracting Co. v. Continental Casualty Co., 230 Cal. App. 2d 491, 499-500, 41 Cal. Rptr. 98, 104 (1964).

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