5.3.1.4.6.2.1.2 Active Interference Exception

• Jurisdiction: Arizona

Originally, “active interference” was defined by the Iowa District Court in Peter Kiewit Sons’ Co. v. Iowa South Utilities Co., as an “affirmative, willful act, in bad faith, to unreasonably interfere with the [contractor’s] compliance with the terms of the construction contract.”^[108] The court further observed that it was further generally recognized that “active interference” should be more than “a simple mistake, error in judgment, lack of total effort, or lack of complete diligence.”^[109] For many years, the Peter Kiewit definition was the recognized standard definition of “active interference.”

However, from review of the various cases since the 1973 Peter Kiewit decision, one theme is obvious—what constitutes “active interference” varies among jurisdictions and even within the same jurisdictions.^[110] There is also a split of authority in some recent cases whether the “active interference” which impacts the contractor’s performance of the work must be undertaken with bad faith or...