HOW TO BEAT A “NO DAMAGE FOR DELAY” CLAUSE
Richard Gary Thomas
and
Fred D. Wilshusen
The Construction Lawyer
Volume 9, Number 1
January 1989
Copyright © 1989 American Bar Association
Reprinted with Permission
All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
How to Beat a “No Damage for Delay” Clause
Attorneys are often the bearers of bad news. At times, they are forced to advise clients that the law provides no remedy even though their client has clearly been wronged. Such is often the case when a contractor has experienced delay damages and the contract contains exculpatory language known as a “no damage for delay” clause.
Most construction practitioners know of well recognized exceptions to the application of the clause, including: a) delay resulting from active interference; b) delay not covered by the terms of the clause; c) unreasonable delay; and d) delay not contemplated by the parties when the agreement was made.1 While these exceptions are widely discussed, they are not universally accepted.
Some jurisdictions rigidly enforce the “no damage for delay” clause. Without attempting to be all-inclusive, courts in the states of Washington,2 Illinois,3 Utah,4 Massachusetts,5 and Texas6 have rigidly enforced “no damage for delay” clauses. Reasoning varies from court to court, but with the same effect: defeat of the claim and lack of enthusiasm for similar claims by construction practitioners.
This article is written for claimants who fact appellate decisions rigidly enforcing the clause. Notwithstanding seemingly persuasive authority to the contrary, a claimant can prevail on a delay claim in spite of the existence of a “no damage for delay” clause. To do so, the claimant must follow a two-step process to achieve that result. First, select a theme that emphasizes the injustice of enforcing the clause as well as the justness of the claimant’s clause. Second, select a viable legal theory as grounds for not enforcing the clause.
Select a Theme
The first step is to select a theme that the claimant can use to convince the court that a rigid construction of the clause will result in a shocking or extremely unreasonable result. Unless the court has a genuine desire to rule for the claimant and is persuaded that injustice will result if it does not do so, all will be lost. The practitioner should be cautioned that this is an exercise in persuasion and not an exercise in legal theory.
Many methods exist for the use of the practitioner to persuade the court of the inequity of rigidly enforcing the clause. In every case, however, the practitioner must convince the court that the delay is not the claimant’s fault and that he had no control over its occurrence.
Also in every case the claimant must convince the court that the particular delay in question was not contemplated by the parties at the time of contracting. Behind this argument is the policy that it is unfair to impost consequences of a delay upon a party when the risk of that delay was not consciously or subconsciously allocated by the parties when they signed the contract. It should be repeated that this is an exercise in persuasion and not in legal theory. Therefore, this argument might best be made implicitly because some courts expressly reject the “not contemplated by the parties” exception.7 Nevertheless, the court must conclude that the claimant did not foresee the occurrence that caused the delay and hence did not contractually accept the risk.
The task with which the claimant’s attorney is faced, therefore, is to convince the court that a rigid enforcement of the clause produces an unfair and undesirable result. Having accomplished this goal, the practitioner must then find a legal theory for the court to employ that avoids the harsh result of rigidly enforcing the clause.
Select a Legal Theory
The second step of the two-step process is to select a legal theory that will allow the court to reach the desired result once the court has been persuaded of the injustice of enforcing the clause. In advancing the legal theory, it is important that the claimant’s attorney understand the competing interests the court faces.
On the one hand, the court is interested in sanctity of contracts and in being able to rely upon written expressions contained in contracts. Commercial law cannot discard sanctity of contracts because of a harsh result.8
On the other hand, sanctity of contracts should not always dominate other factors. Commercial jurisprudence requires a degree of flexibility. General examples of this policy are found in well-established principles of commercial law. For example, the concept of reasonableness has been adopted by the Uniform Commercial Code.9 A rule of contract interpretation is that a contract will be interpreted so as to render it reasonable and fair rather than unreasonable and harsh to one of the parties.10 There is also authority that a disparity in bargaining power can affect the interpretation of contracts. 11 Finally, under the Uniform Commercial Code, a clause in a contract that is found to be unconscionable may be limited to avoid an unconscionable result.12
Since the practitioner seeks a result which appears to be prohibited by the contract, his goal should be to present his legal theory as one that allows the court maximum flexibility. This can best be accomplished by contending that the legal theory allows the court to use its discretion or judgment on an ad hoc or case-by-case basis. This frees the court to exercise its sense of equity and desire to achieve a just result. Further, it affords the court a better opportunity to recognize a question of fact, thereby avoiding the threat of summary judgment or instructed verdict. Furthermore, a standard which is applied according to the circumstances of each case allows the practitioner greater flexibility in obtaining a favorable verdict from the fact finder when faced with difficult contract language. Hence, the legal theory selected should favor decisions which can be made on an ad hoc basis.
In his search for the theory, the practitioner has traditional and nontraditional exceptions from which to choose.
Traditional Ways to Beat the Clause
Traditional legal theories for challenging a “no damage for delay” clause include the recognized exceptions to the clause listed above as well as the traditional contract arguments that a contract clause is unenforceable or does not bar recovery due to: a) waiver, b) inconsistency with other contract provisions, and c) strict construction of exculpatory clauses. Some of these theories lend themselves to the desired ad hoc determinations, while others do no.
Active Interference
The active interference exception presents an excellent opportunity for the practitioner to utilize a legal theory that allows the court to exercise its discretion on a case-by-case basis. A traditional example of active interference would be the situation encountered in Johnson v. State where the State of New York opened a roadway on which the contractor was working to traffic for the use of other contractors.13
However, “active interference” does not have to be defined narrowly. Blake Construction Co. v. C.J. Coakley Co., Inc. is a case where the active interference exception was used in its broader sense.14 In that case, the court refused to enforce a “no damage for delay” clause regarding a subcontractor’s claims against a general contractor. One of the court’s reasons for not doing so was that the general contractor scheduled the subcontractors’ work in an improper sequence.15
Improper sequencing occurs in most delayed projects. Blake contains a virtual laundry list of facts which a practitioner can look for in his case to establish improper sequencing. Among other things, there was: a) a considerable variance between the actual work sequence and that projected by the general contractor’s CPM scheduling diagram; b) out of sequence work by trades which should have been subsequent to the subcontractors; c) overcrowding because of the mingling of numerous trades in one area; d) the shifting of workers from floor to floor rather than the completion of work in a systematic manner; e) performance or failure to perform work that interfered with the subcontractor’s planned performance under its contract; f) issuing of change orders disruptive to the subcontractor’s planned performance; and g) damage caused by trades scheduled out-of-sequence with the subcontractor’s work.16
Once the practitioner has determined what types of improper sequencing harmed his client, he should then determine what circumstances of his client’s project make the improper sequencing particularly egregious. In Blake, one such circumstance which impressed the court was the size and complexity of the project.17 Another such circumstance occurred when the general contractor completely abandoned traditional sequencing mechanisms such as updating schedules and holding weekly meetings, opening itself to the argument that it unfairly and selfishly abdicated its responsibilities to its subcontractors.
The circumstances will vary from case to case. However, most delay claims arise out of projects that have gone awry. In the midst of a bad project the general contractor’s actions can take on a direct and willful character that distinguish active interference and make courts more willing to grant relief despite the existence of a “no damage for delay” clause. This task will be facilitated once the practitioner has persuaded the court of the uniqueness of his case.
In addition to the factual arguments, the claimant should also consider whether the one-sidedness of a contract containing a “no damage for delay” clause can be turned to his advantage by arguing for an exception to that clause. The most extreme “no damage for delay” clauses are found in form contracts that favor the contractee in a lopsided manner. When the contract puts the contractee in a particularly dominant position regarding scheduling, it should be easier to convince a court that the contractee’s lack of cooperation or consideration for the needs of the claimant constitute active interference or bad faith.18
Hindrance
Another traditional alternative for avoiding the operation of a “no damage for delay” clause can be found in cases of hindrance. There is no uniformity to the language used in “no damage for delay” clauses,19 and sometimes a clause will fail to include the work “hindrance.”20 When hindrance is not expressly disclaimed, the practitioner should argue that his client was hindered and not delayed and therefore is not barred from relief by the “no damage for delay” clause.
This exception lends itself to a flexible case-by-case approach. The goal of the practitioner is to view the acts or omissions of the contractor as hindrances rather than delays.
The practitioner would argue that a “hindrance” is difference from a “delay” because hindering connotes impeding or obstruction of the contractor by the contractee.21 It is important to note that although hindrance constitutes active obstruction by the contractee, it is different from and lesser in degree than active interference. Active interference in its traditional form includes additional aggravating circumstances which make the interference particularly egregious.22 While a hindrance does not require an element of bad faith or evil motive as is often the case with “active interference,” hindrance necessitates some degree of impeding or obstructing the claimant’s work.
By defining the word “hindrance” broadly, it can be concluded that virtually any act or omission by the contractee that resulted in impeding or obstructing the claimant’s work constituted a hindrance. The practitioner is limited only by his creativity in interpreting the facts of his case as a hindrance rather than a delay.
This construction by no means fails to give effect to the “no damage for delay” clause. The clause would prevent a claimant from recovering when the progress of its work was impeded for reasons not caused by the contractee.
In John e. Green Plumbing & Hearing Company, Inc. v. Turner Construction Company,23 the claimant successfully argued that a “no damage for delay” clause which did not include the term “hindrance,” but dealt only with “delay” barred only delay damages and not damages caused by the obstacles created by the contractee. The court accepted this argument and held that delay damages referred only to the cost of an idle work force whereas a “hindrance” dealt with the direct obstruction of the contractor’s work by the contractee.24 The court reasoned that several cases that enforced “no damage for delay” clauses dealt with clauses which included the term “hindrance.”25
Fraud
Fraud is another exception to the enforcement of “no damage for delay” clauses ripe for extension to new fact situations. Fraud can be defined narrowly in its traditional sense or more broadly. Particularly when defined broadly, the court has significant discretion in applying the exception to individual cases. It therefore qualifies as a legal theory that lends itself to the desired ad hoc determination.
Fraud in its traditional sense involves a misrepresentation of a fact, known to be untrue by the party making it, with intention to induce action or inaction which is relied upon by a person who, as a result of such reliance suffers injury.26 An example of fraud in its traditional sense precluding the application of the “no damage for delay” clause is E. C. Nolan Co., Inc. v. State.27 In Nolan , the owner represented in bid documents that a precedent prime contractor would be complete on a certain date when the owner knew of facts rendering the meeting of that deadline tenuous.
One may argue for an extension of Nolan to include any material representations or promises made during the course of construction where the maker of the representation knew of facts making the accuracy of the representation or promise tenuous. If this argument is accepted, promises by owner’s representatives, construction project managers, or superintendents to the effect that materials would be delivered on a certain date or that precedent trades would not impede progress of other trades could bar application of the clause.
A less precise understanding of fraud not confined to pure misrepresentation of fact exists. It includes “acts, omissions, and concealments involving a breach of legal or equitable duty, trust, or confidence justly reposed, resulting in damage to another, or by which an undue or unconscientious advantage is taken.”28
Fraud as an exception to the enforcement of a “no damage for delay” clause is not limited to the traditional form of fraud but also includes the broader understanding of fraud discussed above. Usually the courts use fraud in a general sense associating it with “evil intent, improper motive or willfulness amounting to bad faith.”29 The Supreme Court of Wisconsin probably went farthest in this direction in First Savings & Trust Co. v. Milwaukee County, holding that inexcusable ignorance or incompetence were grounds for avoiding the clause.30
If the court can be convinced that fraud includes inexcusable ignorance or incompetence, then the court has great discretion in determining whether particular conduct was “fraudulent.” This approach to fraud also allows the practitioner to focus on the central theme that enforcement of the clause will lead to intolerable injustice.
Unreasonable Delay
Most jurisdictions also recognize that an unreasonable delay is an exception to enforcement of the “no damage for delay” clause.31 This exception is a good one because the court can only determine reasonableness on a case-by-case basis. Consequently, the practitioner under this exception has wide latitude to emphasize the special circumstances that make the delays encountered by his client particularly egregious.
Some courts refer to this exception as “a delay so long as to justify an abandonment of the project.”32 Legally this phrase means the same think as “unreasonable delay” because an unreasonable delay is required before a party can abandon or rescind performance.
Ordinarily, time is not of the essence of the contract33 and the courts will imply that the parties agreed to perform within a reasonable time period.34 If either party unreasonably delays performance, he has materially breached the contract and the other party is justified in unilaterally rescinding or abandoning the contract. Hence, an unreasonable delay precludes the application of the “no damage for delay” clause.35
Arguable, a “time is of the essence” clause and a “no damage for delay” clause are in irreconcilable conflict. A provision that “time is of the essence” is an express agreement that timely performance is a material term to the contract. 36 If breached, it justifies abandonment of the contract. It follows that any delay is a delay which justifies abandonment, and accordingly qualifies as an exception to enforcement of the “no damage for delay” clause.
If two terms of a contract are in irreconcilable conflict, then neither clause should be enforced.37 Furthermore, a contract should be construed against the drafter. Little question exists as to who the drafter 38 is when a contract contains a “no damage for delay” clause. Hence, when a contract provides that “time is of the essence,” the claimant should argue for rejection of the “no damage for delay” clause as irreconcilable and void.39
Alternatively, the two clauses can be harmonized in a manner beneficial to the claimant. This satisfies the well-accepted rule of contract construction which encourages reconciling apparently contradictory provisions if possible.40 Even when time is of the essence, slight and insignificant delays do not necessarily constitute a breach of the timeliness requirement or justify rescission.41 Consequently, the “no damage for delay” clause should be interpreted as targeting the inconsequential, minor delays frequently encountered during construction projects. It can then be concluded that the clause does not apply to the longer, more significant delays that result in extreme consequences.
One note should be made regarding terminology. It is important to argue this exception as an “unreasonable delay” rather than as “a delay so long as to justify an abandonment of the contract.” The difference in wording can greatly assist the practitioner in focusing the judge’s attention away from cases that have held long delays as not sufficient to justify abandonment of the project.42 When the court is deciding whether a delay is “unreasonable,” it is easier to approach the exception to the “no damage for delay” clause as one which should be applied in a case-by-case manner because a delay that might be reasonable under some circumstances might be unreasonable under others.
Delays Not Within the Contemplation of the Parties
Many courts avoid the harsh results of a “no damage for delay” clause by not enforcing it in connection with delays not contemplated by the parties at the time of contracting.43 The “not within the contemplation of the parties” exception is the one most useful in focusing the court on the inequities of enforcing the clause and in allowing the court to exercise its discretion on an ad hoc basis. When this exception is available, the claimant should take advantage of it.
One harsh means of enforcing the “no damage for delay” clause is to eliminate the “not within the contemplation of the parties” exception.44 Such cases hold that the “no damage for delay” clause is unambiguous. Therefore, parol evidence is inadmissible to determine what was intended by the parties when they entered into the agreement.45
When this exception is not available because of strict enforcement of the parol evidence rule, the practitioner should not give up hope. As noted earlier, the language used in “no damage for delay” clauses varies widely.46 Therefore, every contract should be examined for possible ambiguity. Once parol evidence is admissible, the parties can then explain what was intended when the contract was signed.
Traditional Contract Arguments
Traditional contract arguments can be used to defeat a “no damage for delay” clause in the same manner they are used to defeat other contract clauses. These arguments include waiver, irreconcilable conflict with other contract clauses and strict construction of exculpatory clauses against the drafter.
Even though a contract might provide a contractee with ironclad protection, he can still waive his right to enforcement of that clause by his conduct. The “no damage for delay” clause is no exception.47 Of the traditional contract arguments, this is the most flexible. Any manner of conduct, statement, or inaction by the general contractor can be argued as a waiver of express contract rights. The creative practitioner is likely to be able to mold this contract argument to the circumstances of his case. Furthermore, waiver is a legal argument that permits the court to focus upon the facts of the particular case rather than relying strictly upon legal precedent and interpretation of contract language.
In addition to waiver, the practitioner should consider whether the “no damage for delay” clause conflicts with another contract provision. Whenever two contract provisions are in irreconcilable conflict, neither provision is enforceable.48 As noted above, one example where this might be used is a contract that includes both a “time is of the essence” clause and a “no damage for delay” clause. A variation of that theme might exist where a specific construction timetable is incorporated as part of the contract.
A final contract argument can be made that a “no damage for delay” clause, like any exculpatory clause, should be strictly enforced against the drafter.49 For example, the practitioner could contend that “delay” does not include “hindering,”50 “acceleration,”51 “labor inefficiency,”52 and “improper sequencing.”53 While this theory may not have the appeal of focusing on the facts of the case, it should be given serious consideration. Its greatest attribute is its simplicity. Judges are familiar with this principle of law and are comfortable with its application. If the claimant has been successful in persuading the court of the justness of its cause, this may be the best legal theory available.
Nontraditional Exceptions
Although in the majority of cases, the practitioner will need to apply the traditional exceptions creatively, he should be aware that nontraditional exceptions can be of use including the cardinal change doctrine and the first to breach defense.
Cardinal Change
The practitioner should be aware of a line of authority in the Court of Claims holding that a drastic modification or fundamental alteration of the scope of the contract breaches the contract, entitling the contractor to damages.54
Although cardinal changes usually result from an increase in the scope of work, they can also be the result of decreases in scope. The critical factor is the magnitude of the change in the scope,55 not the number of the change orders.56 In determining whether a change is a “cardinal” change, the court examines the “totality of the change and this requires recourse to its magnitude as well as quality.”57
Ultimately, the court will examine whether the modified job was essentially the same work as the parties bargained for when the contract was awarded.58 Consequently, a cardinal change question is determined on a case-by-case basis.59
When a large number of changes have occurred on a project, the spectre of the cardinal change argument arises. In some cases where the “no damage for delay” clause has been harshly applied, the cardinal change argument might have been a way around the court’s reasoning.60 Since this principle is applied on an ad hoc basis, when the magnitude of the changes is large, whether in number or in scope, the cardinal change argument should be considered.
First to Breach
Another nontraditional defense which can be used in conjunction with the cardinal change doctrine, is the defense of first to breach. The practitioner should determine whether the contractee has breached some other material contract term. If so, the practitioner could argue that the contractee is prevented by his breach from relying on exculpatory provisions in the contract.61
Availability of Exceptions
The practitioner who attacks a “no damage for delay” clause will often encounter appellate authority from other jurisdictions rejecting his legal theory. He should not despair immediately. Those other jurisdictions usually have a “safety valve” in their jurisprudence to allow a just claim to be compensated despite the presence of authority to the contrary.
Two jurisdictions with widely publicized holdings harshly enforcing “no damage for delay” clauses are instructive. In New York, Kalisch-Jarcho, Inc. v. City of New York received much publicity for its holding that the contractor would have to demonstrate that the owner’s conduct amounted to gross negligence before recovery could be had for contemplated delays when facing a “no damage for delay clause.”62 Nonetheless, subsequent decisions in New York have upheld the “not within the contemplation of the parties” exception, which is the easiest exception to met in avoiding the effect of the “no damage for delay” clause.63
In Texas, a substantial verdict in favor of a general contractor on Houston Intercontinental Airport was reversed in City of Houston v. R.F. Ball Construction Co., Inc.64 The basis for that reversal was that a “no damage for delay” clause was unambiguous and enforceable. Nonetheless, there is authority in Texas providing that a “no damage for delay” clause does not give license to a party to cause delays willfully, by unreasoning action, without due consideration and in disregard of the rights of other parties.65 This broad standard allows the practitioner ample room for avoiding a “no damage for delay” clause even if it is unambiguous.
Hence, if the claimant advances a legal theory aimed at avoiding the clause and the party relying upon the clause submits precedent from a different jurisdiction rejecting the claimant’s argument, a thorough analysis of that jurisdiction’s treatment of the entire subject should be made. It could well be that the jurisdiction that rejects the claimant’s argument would allow the claimant recovery under some other theory. Therefore, it should be argued that it is inconsistent for the party relying upon the clause to use an isolated line of authority when the prevailing jurisprudence of that state would allow recovery. The court should view the “big picture” of the jurisdiction’s treatment of a subject before basing its ruling upon a particular case of that state.
CONCLUSION
In the end, the only reason for a court to refuse to enforce a “no damage for delay” clause is that it is unfair to do so. If a jurisdiction does not permit the use of one method to avoid the effect of the clause, there is no reason why it should not employ another theory when the application of the case results in injustice.
The practitioner must first convince the court that injustice will occur if a “no damage for delay” clause is enforced. Once he has done so, if he can locate a legal theory that gives the court flexibility in exercising discretion, the court might well disregard negative authority and provide the claimant relief.
1 BRAMBLE & CALLAHAN, CONSTRUCTION DELAY CLAIMS § 2.43 (1987) Annotation, Validity and Construction of “No Damage” Clause with Respect to Delay in Building or Construction Contract, 74 A.L.R. 3d 187, 213 (1987) [hereinafter Validity and Construction of “No Damage” Clause ].
2 Christiansen Bros., Inc. v. State, 90 Wash. 2d 872, 586 P.2d 840 (1978).
3 M.A. Lombard & Son Co. v. Public Bldg. Comm’n of Chicago, 101 Ill. App. 3d 514, 428 N.E. 2d 889 (1981); Bates & Rogers Constr. V. Greeley & Hansen, 109 Ill. 2d 225, 486 N.E.2d 902 (1985); Bates & Rogers Constr. Corp. v. Northshore Sanitary Dist., 92 Ill. App. 3d 90, 414 N.E.2d 1274 (1980).
4 Western Eng’rs, Inc. v. State Rd. Comm’n, 20 Utah 2d 294, 437 P.2d 216 (1968).
5 Wes-Julian Constr. Corp. v. Commonwealth, 351 Mass. 588, 223 N.E.2d 72 (1967).
6 City of Houston v. R.F. Ball Constr. Co., Inc., 570 S.W.2d 75 (Tex. Civ. App.—Houston [14th Dist.] 1978, writ ref’d n.r.e.).
7 Western Eng’rs, Inc. 20 Utah 2d 294, 437 P.2d 216; City of Houston , 570 S.W.2d at 78.
8 R.F. Ball Constr. Co., Inc., 570 S.W.2d at 78.
9 See, e.g., U.C.C. §§ 2-513, 2-606, 2-607(3)(a), 2-608 (1)(2), 2-609(1)(2) and 9-504(1)(3) (1977).
10 SIMPSON, LAW OF CONTRACTS § 102 at 212 (2d ed. 1965).
11 Atwater Creamery Co. v. Western Nat’l Mut. Ins. Co., 366 N.W.2d 271 (Minn. 1985); Inman v. Clyde Hall Drilling Co., 369 P.2d 498 (Alaska 1962); Wells & Newton Co. of N.Y. v. Craig, 232 N.Y. 125, 133 N.E. 419 (1921).
12 U.C.C. § 2-302 (1977).
13 Johnson v. State, 5 A.D.2d 919, 172 N.Y.S.2d 41 (1958).
14 Blake Constr. Co., Inc. v. C.J. Coakley Co., Inc., 431 A.2d 569 (D.C. 1981).
15 Id. at 576.
16 Id. at 573-74.
17 Id. at 575.
18 See United States Steel Corp. v. Missouri Pac. R.R. Co., 668 F.2d 435, 439 (8th Cir. 1982) (contractee’s control over when claimant commenced work persuasive in finding active interference by the contractee).
19 See Validity and Construction of “No Damage” Clause, supra note 1, § 1[c] at 197 for examples of different forms of wording of these clauses.
20 See John E. Green Plumbing & Heating Co., Inc. v. Turner Constr. Co. 742 F.2d 965, 966 n. 1 (6th Cir. 1984).
21 THE RANDOM HOUSE DICTIONARY OF THE ENGLISH LANGUAGE 672 (1969).
22 See Validity and Construction of “No Damage” Clause, supra note 1, § 7[e] at 220 (“[i]n order to constitute interference there must be reprehensible conduct of the contractor which is in collision with or runs at cross purposes to the work of the contractor”) (footnote omitted).
23 John E. Green Plumbing & Heating Co., Inc. , 742 F.2d 965 (6th Cir. 1984).
24 Id. at 966-67.
25 Id. at 967, But see Unicon Management Corp. v. City of Chicago, 404 F.2d 627, 630 (7th Cir. 1968) (a “no damage for delay” clause excluding damages for “any act or delay” is broad and comprehensive and includes “all delays caused by the [contractee] whether they be unavoidable or such that they could have been avoided by the [contractee].”)
26 37 AM. JUR. 2d FRAUD AND DECEIT § 12 (1968).
27 E. C. Nolan Co., Inc. v. State, 227 N.W.2d 323, 326 (Mich. App. 1975); Walter Toebe & Co. v. Dept. of State Highways, 144 Mich. App. 21, 373 N.W.2d 233 (1985).
28 37 AM. JUR. 2d supra note 26, § 1 (1968).
29 Anthony P. Miller, Inc. v. Wilmington Housing Auth., 165 F. Supp 275, 283 (D. Del. 1958); See Also Western Eng’rs , 437 P.2d at 217 n. 2 (“fraudulent, malicious, capricious or unreasonable acts on the part of defendant to delay or harass plaintiff in the prosecution of the work”); Cunningham Bros., Inc. v. City of Waterloo, 117 N.W.2d 46, 49 (Iowa 1962) (fraud used broadly with “active interference”). ]
30 First Savings & Trust Co. v. Milwaukee County, 148 N.W. 22, 34 (1914).
31 Validity and Construction of “No Damage” Clause, supra note 1, § 7[i] at 226-27 nn. 3-5.
32 Cunningham Bros. , 17 N.W.2d at 49.
33 See General Sprinkler Corp. v. Loris Indus. Developers, Inc., 271 F. Supp. 551, 558 (D.S.C. 1967); Latham v. Butler, 17 S.W.2d 1083 (Tex. Civ. App.—Galveston, 1929, writ ref’d).
34 River Cities Constr. v. Barnard & Burk, Inc., 444 So.2d 1260, 1265 (La. App. 1983).
35 Validity and Construction of “No Damage” Clause, supra n. 1, § 7[i] at 226-27, nn. 3-5.
36 6 JAEGER, WILLISTON ON CONTRACTS § 846 (1962).
37 17A C.J.S. CONTRACTS § 309 (1963).
38 4 JAEGER, supra note 36 § 621.
39 Contra Vermont Marble Co. v. Baltimore Contractors, Inc., 520 F. Supp. 922 (D.C. 1981).
40 17A C.J.S. supra note 37.
41 Vermont Marble Co., 520 F. Supp. at 928.
42 See, e.g., Yale Development Auth. v. Aurora Pizza Hut, Inc., 420 N.E.2d 823, 825 (Ill. App. 1981) (seventeen-month delay not unreasonable).
43 United States Steel Corp., 668 F.2d at 438 (enforcing Arkansas law); Blake Constr. Co., Inc. 431 A.2d at 569; North Shore Sanitary Dist. , 414 N.E.2d at 1274; A. Kaplen & Son, Ltd. v. Housing Authority, 126 A.2d 13, 16 (N.J. Super. 1956); Sheehan v. City of Pittsburgh, 213 Pa. Super. 133, 62 A.2d 642 (1905); Phoenix Contractors, Inc. v. General Motors Corp., 135 Mich. App. 787, 355 N.W.2d 673 (1984).
44 See, R. F. Ball Constr. Co., Inc., 570 S.W.2d at 78; Western Eng’rs, Inc., 437 P.2d at 218.
45 Id. This reasoning can be defeated by finding some other clause which conflicts with the wording of the “no damage for delay” clause, thereby allowing introduction of parol evidence to explain the ambiguity.
46 Validity and Construction of “No Damage” Clause, supra note 1.
47 Wilson & English Constr. Co. v. New York Central R.R. Co., 240 A.D. 479, 269 N.Y.S. 874 (1934); Chicago college of Osteopathic Medicine v. George a. Fuller Co., 776 F.2d 198, 203 (7th Cir. 1985).
48 Shintech, Inc. v. Group Constructors, Inc., 688 S.W.2d 144 (Tex. Civ. App.—Houston [14th Dist.] 1985, no writ.
49 Giammetta Assoc., Inc. v. J.J. White, Inc., 573 F. Supp. 112 (E.D. Pa. 1983).
50 John E. Green Plumbing & Heating Co., 742 F.2d at 966-67.
51 The primary obstacle to recovery under this theory is the tendency of courts to view acceleration claims as delay claims. See, e.g. , E C. Ernst, Inc. v. Koppers Co., Inc. 520 F. Supp. 830 (W.D. Pa. 1981).
52 Contra North Shore Sanitary Dist., 92 Ill. App. 3d at 90, 414 N.E.2d at 1274.
53 Blake Constr. Co., 431 A.2d at 576; United States Steel Corp. , 668 F.2d at 439; American Bridge Co., Inc. v. State, 273 N.Y.S. 577, 582 (1935).
54 Air-A-Plane Corp. v. United States, 408 F.2d 1030 (Ct. Cl. 1969).
55 General Contracting and Constr. Co., Inc. v. United States, 84 Ct. Cl. 570 (1937).
56 Magoba Constr. Co., Inc. v. United States, 99 Ct. Cl. 662 (1943).
57 Saddler v. United States, 287 F.2d 411, 152 Ct. Cl. 557 (1961).
58 Air-A-Plane Corp., 408 F.2d at 1030.
59 Allied Materials and Equip Co., Inc. v. United States, 569 F.2d 562, 565 (Ct. Cl. 1978).
60 R. F. Ball Constr. Co., Inc., 570 S.W.2d at 76 (several hundred change items and 800-900 clarifications issued.)
61 Corinno Civetta Constr. v. City of New York, 493 N.E.2d 905, 912, 502 N.Y.S.2d 681, 688 (N.Y. 1986)
62 Kalisch-Jarcho, Inc. v. City of New York, 58 N.Y.2d 377, 488 N.E.2d 413, 461 N.Y.S.2d 746 (1983).
63 Corinno Civetta Constr. Corp., 67 N.Y.2d 297, 493 N.E.2d 905, 502 N.Y.S.2d 681.
64 R.F. Ball Constr. Co., 570 S.W.2d at 75.
65 Housing Authority of City of Dallas v. Hubbell, 325 S.W.2d 880, 891 (Tex. Civ. App.—Dallas 1959, writ ref’d n.r.e.)
