Who is Protected in a No Damages for Delay Clause?

Contract language should specifically state whether a waiver of delay damages extends beyond the owner to third parties such as architects

Gavel And Hardhat

Originally published by Matthew DeVries on Best Practices Construction Law blog.

When we think of delays on a construction project, the first inquiry is to identify the turtle — the one party holding up progress or causing the delay. Many times, the parties’ contract will dictate whether the contractor can recover delay damages or will be limited to a time extension for delays beyond the contractor’s reasonable control.  In Perez-Gurri v. McLeod, 238 So.3d 347 (Fl. Ct. App. 2018), the court examined whether a “No Damages for Delay” clause extended to parties other than the owner.

The general contractor in McLeod filed a malpractice action against the architect on a public contract for the City of Miami. The architect filed a motion for summary judgment, arguing that the general contractor’s delay claim was contractually barred by a “No Damages for Delay” clause in the contract between the general contractor and the City of Miami. The trial court granted summary judgment in favor of the architect. The appellate court reversed, finding that the owner-contractor agreement did not insulate the architect from liability.

(more on who is protected and excluded from "No Damages for Delay" clauses...)

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