US District Court in Michigan Holds No Damages for Delay Provision in Subcontract to be Performed in Georgia Unenforceable Under Ohio Statute Where Choice of Law Provision Specified Application of Ohio Law

Acme Contracting, Ltd. v. TolTest, Inc
2008 U.S. Dist. LEXIS 36355 (E.D. Mich. May 5, 2008)

The United States District Court for the Eastern District of Michigan recently had to interpret an Ohio statute (O.R.C. §4113.62) which statute dealt with the enforceability of no damages for delay provisions in construction contracts. Relying on prior cases interpreting the applicable statute, the District Court found that the subcontract which limited delay claims to a time extension only was prohibited under the statute and, therefore, void and unenforceable. Although the District Court permitted the subcontractor to recover delay damages, it also concluded that the subcontractor had not proven that it was entitled to extended home office overhead costs using the Eichleay formula and refused to award such damages. Continue reading “US District Court in Michigan Holds No Damages for Delay Provision in Subcontract to be Performed in Georgia Unenforceable Under Ohio Statute Where Choice of Law Provision Specified Application of Ohio Law”

US District Court in New York Holds That CPM Expert Not Required to Prove Delay and That Liquidating Agreement is Required in Order to Bring Pass-Through Claims

Helena Assocs., LLC v. EFCO Corp.
U.S. Dist. LEXIS 39977 (S.D.N.Y. May 14, 2008)

Owner, The Helena Associates, LLC contracted with EFCO Corporation for the work, materials and installation of aluminum windows in the construction of The Helena, a high-rise residential building in New York City. Helena brought a breach of contract action against EFCO alleging that EFCO had failed to comply with project schedules, caused delay to the project, and failed to provide sufficient manpower and supervision. Helena claimed damages in excess of $6.7 million. EFCO denied Helena’s claims arguing that the delays were caused by factors outside of its control and within the control of parties for whom Helena was responsible, and asserted a counterclaim for additional work of approximately $875 thousand. EFCO moved for partial summary judgment. Continue reading “US District Court in New York Holds That CPM Expert Not Required to Prove Delay and That Liquidating Agreement is Required in Order to Bring Pass-Through Claims”

North Carolina Appellate Court Holds Limitation Of Damages And Indirect Damages Provisions In Engineering Contract To Be Enforceable

Mostellar Mansion, LLC v. Mactec Engineering & Consulting of Georgia, Inc.
2008 N.C. App. LEXIS 1011 (May 20, 2008)

Mostellar Mansion, LLC (Mansion) entered into a contract with Mactec Engineering and Consulting of Georgia, Inc. (Mactec) in connection with Mostellar’s plan to purchase a tract of land for the construction of an apartment complex (the Project Site). Under the contract, Mactec was to assess the subsurface conditions of the Project Site, determine if the Project Site was suitable for the proposed construction and provide recommendations for foundation design and site preparation for the proposed structures. The contract contained the following pertinent provisions: Continue reading “North Carolina Appellate Court Holds Limitation Of Damages And Indirect Damages Provisions In Engineering Contract To Be Enforceable”