{"id":897151,"date":"2020-03-04T12:01:22","date_gmt":"2020-03-04T19:01:22","guid":{"rendered":"https:\/\/www.myconstructionexpert.com\/blog\/?p=897151"},"modified":"2020-03-04T12:01:28","modified_gmt":"2020-03-04T19:01:28","slug":"enforceability-no-damage-for-delay-provision-summary-judgment","status":"publish","type":"post","link":"https:\/\/www.myconstructionexpert.com\/blog\/enforceability-no-damage-for-delay-provision-summary-judgment\/","title":{"rendered":"Is the Enforceability of a No-Damage-for-Delay Provision Inappropriate for Summary Judgment"},"content":{"rendered":"\n

David Adelstein | Florida Construction Legal Updates<\/a><\/p>\n\n\n\n

Is the enforceability of a\u00a0no-damage-for-delay provision<\/a>\u00a0inappropriate for resolution on a summary judgment?\u00a0 The recent decision in\u00a0U.S. f\/u\/b\/o Kingston Environmental Services, Inc. v. David Boland, Inc.,<\/em>\u00a02019 WL 6178676 (D. Hawaii 2019), dealing with Florida law, suggests that it is inappropriate for a summary judgment resolution, particularly when there is a right to a jury trial.<\/p>\n\n\n\n

In this case, a prime contractor was hired on a federal construction project in Hawaii.  The prime contractor hired a subcontractor and the subcontractor sued the prime contractor and its surety under the Miller Act.  Of interest, the subcontractor was seeking to recover for the costs it incurred due to construction delays<\/strong>.  The prime contractor moved for summary judgment as to the no-damage-for-delay provision<\/strong> in the subcontract.  The no-damages-for-delay provision read as follows (and it is a well-written no-damage-for-delay provision):<\/p>\n\n\n\n

The Subcontractor expressly agrees that the Contractor shall not be liable to the Subcontractor for any damages or additional costs, whether foreseeable or unforeseeable, resulting in whole or in part from a delay, hindrance, suspension, or acceleration of the commencement or execution of the Work, caused in whole or in part by the acts or omissions, whether negligent or not, of the Contractor including other subcontractors or material suppliers to the Project, its agents, employees, or third parties acting on behalf of the Contractor. The Subcontractor\u2019s sole remedy for any such delay, hindrance, suspension, or acceleration shall be a noncompensable time extension.<\/strong><\/p>\n\n\n\n

It is well-settled in Florida that a no-damage-for-delay provision is enforceable.<\/p>\n\n\n\n

But, there are three main exceptions to the enforceability of a no-damage-for-delay provision:  \u201cif the delays were occasioned by [1] the [contractor]\u2019s fraud, [2] concealment, or [3] active interference with [the subcontractor]\u2019s performance under the contract.\u201d<\/strong>  David Boland, Inc<\/em>., 2019 WL at *3 (citation omitted).<\/p>\n\n\n\n

Here, the prime contractor wanted the Court to enforce the no-damage-for-delay provision.  The subcontractor, no different than any other subcontractor, claimed that the exceptions to the enforceability of the no-damage-for-delay provision applied.   In addressing this issue, the Court noted: \u201cAt the outset, it bears emphasis that whether a party has actively interfered with another party\u2019s contractual obligation is a question usually inappropriate for resolution at the summary judgment stage because the issue is highly case-specific and fact intensive<\/strong>.  David Boland, Inc<\/em>., 2019 WL at *4 (internal quotation and citation omitted).<\/p>\n\n\n\n

The Court found that the prime contractor and subcontractor disputed facts relevant to the enforceability of the no-damage-for-delay provision (shocker!) and a jury could find that the prime contractor knowingly delayed or actively interfered with the subcontractor\u2019s performance.  Such facts included:<\/p>\n\n\n\n